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|i  Critical  listoq 

OF 

Pflkrn  Cnglis|  |itrisjruhnce 


A  STUDY  IN  LOGIC,  POLITICS,  AND 
MORALITY 


J^on  a  TrcBtoris  edictu,  neque  a  (Duodecim  Ta bulls,  sed 

fenitus  ex  intima  fhilisophia  haurienda 

juris  disciplina. 


BY 

GEORGE  H.  SMITH 

AUTHOR  OF 

'•Right  and  Law,"  "The  Law  of  Private  Right,"  and  Essays  in  the 
American  Law  Review  on  "The  Certainty  of  Law  and  the 
Uncertainty  of  Judicial  Decisions,"  "The  True  Method  of 
JL,egal    Exiucation,"    and    other  subjects. 


SAN  FRANCISCO 

PACON  Printino  Compaky 

1893. 


Copyrighted,  1893, 

BY 

GEORGE  H.  SMITH. 
All  Rights  Reserved. 


^r^ 


A  limited  edition  of  this  little  work  has  been  printed, 
with  a  view  of  submitting  it  to  friends  of  the  author,  and 
others,  who,  he  may  have  reason  to  suppose,  are  inter- 
ested in  political  science.  But  in  submitting  it  even  to 
this  limited  class  of  readers,  the  author  is  painfully  con- 
scious, from  experience,  that  both  the  subject  of  the  work, 
and  the  method  in  which  it  is  treated  stand  in  need  of 
apology. 

In  regard  to  the  subject,— which  is  Jurisprudence, — 
its  study  in  England  and  this  country,  within  the  last 
fifty  years,  has  fallen  into  almost  entire  neglect ;  and  there 
is  now  no  subject  m6re  generally  unpopular.  The  general 
reader  regards  it  as  belonging  peculiarly  to  the  province 
of  the  lawyer,  and  the  lawyer,  in  general,  as  a  study  of  no 
practical  utility,  and,  with  which,  consequently,  he  has 
no  concern.  And  the  few  who  are  addicted  to  philoso- 
phy, turning  to  the  works  of  the  modern  English  jurists, 
find  there  something  which  bears  no  resemblance  to  real 
Jurisprudence,  but  which  has  usurped  its  place,  and  even 
its  name. 

This  so-called  jurisprudence  is  the  theory  of  Austin, 
(the  principal  subject  of  our  review,)  which  has  become 
so  generally  received  and  firmly  established  in  English 
philosophy  as  to  occupy  exclusively  the  whole  field  of 
Jurisprudence.  But  this  theory,  as  will  be  shown  more 
fully  in  the  body  of  the  work,  asserts,  as  its  fundamental 
principle,  that  the  law  (Jus^  is  merely  an  expression 
of  the  arbitrary  will  of  the  government,  or  state;  and, 
consequently,  that  rights,  and  Justice  or  Right,  are 
the  mere  creatures  of  that  will.  Hence,  if  the  theory 
be  true,  it  follows  that  Jurisprudence, — which,  as  univers- 
ally conceived  by  all  but  the  modern  English  jurists,  is 


11 


the  Science  of  Justice  or  Right, — can  h.ave  no  existence. 
There  is  nothing,  therefore,  to  surprise  us  in  the  fact 
that  the  study  of  the  subject  has  fallen  into  decay.  For 
true  Jurisprudence,  so  far  as  opinion  can  effect  such  a  re- 
sult, has  been  abolished  in  England  and  English-speak- 
ing countries;  and  the  2)seudo  Jurisprudence  that  has  been 
substituted  for  it,  as  may  be  verified  by  reference  to  the 
current  works  upon  the  subject,  is,  of  all  others,  the  dreari- 
est and  the  most  uninviting. 

But  real  Jurisprudence,  the  science  of  Rights,  or  of 
Right  or  Justice,  is,  in  fact,  the  science  of  the  necessary 
conditions  of  rational  social  life,  and  therefore  the  fun- 
damental part  of  Political  and  Social  Philosophy.  And, 
as  of  all  the  departments  of  the  Science  of  Human  Na- 
ture it  is  of  most  transcendent  and  vital  importance,  so 
it  excels  them  all  in  the  scientific  rigor  of  its  method, — 
which  approaches  nearly  to  that  of  Geometry, — and,  con- 
sequently, in  the  certainty  of  its  results.  Hence,  if  we 
lea^e  out  of  view  its  fortunes  in  England  during  the  pres- 
ent Is^entury,  no  other  branch  of  philosophy  has  had  a 
grander  history  ;  nor  is  there  another  that  excels,  or  even 
equals  it,  either  in  the  genius  of  those  who  have  devoted 
themselves  to  its  study,  or  in  the  interest  and  beneficence 
of  the  results  achieved.  For  among  its  devotes,  (or,  as 
Celsus  calls  them  in  the  passage  cited  below,  its  priests,) 

"  Jks  est  ars  boni  et  seqiii,  of  which  some  one  deservedly  calls  us  the 
priests  ;  for  we  conduct  the  cult  or  religion  of  Justice,  and  profess  the 
knowledge  of  the  Good  and  the  Equal,  separating  the  equitable  from 
theinequitable,  and  distinguishing  the  lawful  from  the  unlawful  *  *  * 
following,  if  1  am  not  deceived,  a  true,  and  not  a  spurious  philosophy." 
Pandects  II.,  1,§1. 

are  numbered  all  the  great  philosophers  of  the  world,  from 
Socrates,  Plato  and  Aristotle,  to  Kant  and  his  followers, 
inclusive  ;  and  among  its  achievements,  the  development 
of  the  Roman  Law,  the  reconstruction  of  political  society 
in  Europe,  when  emerging  from  the  anarchy  of  the  dark 
ages,  and  the  institution  of  International  Law  or  Right. 
In  short,  its  history  is  the  history  of  human  civilization  ; 


Ill 


for  civilization  itself,  in  the  proper  sense  of  the  term,  is 
merely  the  capacity  of  a  people  for  social  life,  or,  in  other 
words,  its  capacity  for  realizing  justice;  and  Jurisprud- 
ence may,  therefore,  without  impropriety,  be  said  to  be 
the  Science  of  Civilization. 

From  this  science  and  its  literature,  consisting  of  the 
best  work  of  the  greatest  intellects  of  the  race,  and  to 
which  in  the  continental  countries  of  Europe  fresh  addi- 
tions are  being  constantly  made,  English-speaking  peo- 
ples, since  the  advent  of  Bentham  and  Austin,  and  by  the 
predominance  of  their  philosophy,  have  been  effectually 
isolated  ;  and  it  may,  therefore,  with  confidence  be  asserted 
that  no  task  can  be  nobler,  or,  to  the  philosophic  mind, 
more  interesting, than  the  one  I  have  here,  however  inad- 
equately, attempted;  namely,  to  refute  the  fantastic  and 
pernicious  theory  by  which  the  English  mind  has  been  so 
long  dominated,  and  by  which,  for  the  time  being,  it  has 
been  reduced,  in  its  capacity  to  deal  with  jural  and  polit- 
ical science,  to  a  state  approaching  imbecility,  and  to  re- 
habilitate in  our  midst  true  Jurisprudence. 

It  remains  to  add  a  few  words  in  explanation  of  the 
method  in  which  the  subject  of  the  work  is  treated;  which, 
with  the  average  reader,  it  is  to  be  feared,  will  prove 
equally  unpopular  as  the  subject  itself.  The  modern 
English  theory  of  Jurisprudence  is  universally  admitted 
to  be  the  creation  of  Austin;  by  whom  the  loose  and  pop- 
ular notions  of  Bentham  were  reduced  to  a  rigidly  coher- 
ent system.  But  Austin  himself,  for  his  fundamental 
principles,  drew  largely  upon  Hobbes,  whose  philosophy 
is  thus  necessarily  brought  within  the  scope  of  our  in- 
quiries. The  history  of  modern  English  Jurisprudence, 
therefore,  consists,  almost  exclusively,  of  the  works  of 
Hobbes  and  Austin  ;  and  hence  our  investigations  will, 
in  the  main,  be  confined  to  a  review  of  their  reasoning. 
Now,  it  happens  that  the  works  of  Hobbes  and  Austin 
present  the  most  striking  and  instructive  examples  any- 
where presented, — and,  in  modern  times,  almost  the  only 


piriVBRSITT; 


IV 

examples, — of  the  application  of  the  analytical  or  logical 
method  to  political  science ;  and,  hence,  an  adequate  re- 
view of  their  works  will  be  scarcely  less  interesting  as  a 
study  in  logic,  than  on  account  of  their  political  theories. 
And  this  aspect  of  the  subject,  for  several  reasons,  will  be 
found  peculiarly  deserving  of  our  attentions.  For  the 
use  of  this  method,  which  consists  in  the  accurate  formu- 
lation of  our  premises,  and  in  reasoning  rigorously  from 
proposition  to  proposition,  as  in  geometry,  presents,  over 
all  others,  at  once  a  great  advantage  and  a  great  danger. 
For,  on  the  one  hand,  it  is  its  peculiar  merit,  if  we  regard 
it  as  a  means  of  discovering  truth  rather  than  as  an  instru- 
ment of  persuasion,  that  the  logical  development  of  an 
argument  discloses  its  weak  points,  and  thus,  if  the  same 
method  be  used  in  reviewing  it,  facilitates  the  detection  of 
error.  And,  hence,  the  mistakes  of  great  reasoners,  like 
Hobbes  and  Austin,  are  always  more  apparent,  or  at  least 
are  much  more  easily  pointed  out,  than  those  of  loose  and 
inconsequent  thinkers.  On  the  other  hand,  a  logical 
argument,  if  understood,  forces  assent,  unless  some  error 
or  inaccuracy  can  be  detected  in  thepremises  ;  and  even  an 
argument  only  apparently  logical  will  be  equally  persua- 
sive until  the  fallacy  lurking  in  it  be  discerned.  But 
where  an  argument  is  skillfully  constructed,  this  task, 
whether  it  be  the  detection  of  a  fallacy  in  the  reasoning, 
or  of  a  weakness  in  the  premises,  requires  the  closest  and 
most  critical  examination  of  every  link  in  the  chain  of 
reasoning.  Hence,  while  the  logical  method  facilitates  the 
detection  of  error,  it  is,  to  readers  careless  of  their  logic, — 
as  is,  in  fact,  remarkably  illustrated  by  the  influence  of 
Hobbes'  philosophy,  and  the  domination  of  Austin's  theory 
over  the  English  mind,  —  a  most  powerful  instrument  of 
deception.  The  use  of  this  method  in  our  present  inves- 
tigations is,  therefore,  imperatively  demanded,  on  the  two- 
fold ground  that  it  is,  at  once,  the  readiest,  and  the  only 
adequate  means  by  which  error  can  be  detected  and  re- 
futed in  the  reasoning  of  such  masters  of  the  craft  as 
Hobbes  and  Austin. 


But,  independently  of  this  consideration,  there  is  an- 
other reason  that  imperatively  demands  our  adoption  of 
this  method  ;  for  it  is,  in  fact,  the  true  method  of  political 
science,  and  the  only  one  from  which  assured  results  can 
be  anticipated  ;  as  is,  in  fact,  demonstrated  affirmatively 
by  the  example,  not  only  of  Hobbes  and  Austin,  but  also 
of  Aristotle,  Bacon,  Locke,  Hume,  Grotius,  and  other 
great  reasoners,  and  negatively,  by  the  lack  of  convinc- 
ing power  in  the  great  mass  of  the  political,  social,  and 
moral  disquisitions  of  the  day.  Hence,  if  we  would  justly 
weigh  the  reasoning  of  Hobbes  and  Austin,  or  even  un- 
derstand it,  we  must  adopt  their  own  method;  and,  in 
doing  this,  in  addition  to  the  knowledge  we  may  other- 
wise gain,  and  which  cannot  in  any  other  way  be  ob- 
tained, we  will  learn  from  their  example  the  true  and  the 
only  method  for  the  successful  investigation  of  the  prob- 
lems of  jurisprudence  and  of  political  science  generally  ; 
of  which  method  it  is  one  of  the  principal  objects  of  this- 
work  to  demonstrate  the  efficacy  and  power. 

But  the  logical  or  analytical  method  demands  the  use 
of  a  style  altogether  different  from  that  in  common  use, — 
which  may  be  called  the  popular  or  rhetorical.  For  it  is 
the  peculiar  characteristic  of  the  logical  style  that  it  must 
be  accurate  or  aphoristic,  i.  <?.,  it  must  express  the  exact 
truth,  without  any  admixture  of  error ;  for  otherwise  our 
conclusions  will  be  altogether  unreliable.  And  this  re- 
quires the  exact  analysis  of  the  meaning  of  the  terms  we 
use,  and  the  formal  statement  of  our  propositions ;  which, 
to  the  general  reader  is  distasteful.  For,  while  the  logical 
style  admits,  and  even  requires,  great  brevity  of  expres- 
sion,— so  that  in  general  the  matter  of  volumes  of  ordi- 
nary popular  disquisition  may  by  means  of  it  be  com-^ 
pressed  into  a  few  chapters, — yet,  it  demands  on  the  other 
hand,  a  degree  of  attention  and  independent  thought,  that 
only  a  few  highly  trained,  or  exceptionally  gifted  minds 
are  willing  to  give,  or,  perhaps,  are  capable  of  giving. 

The  best  type  of  this  style  is  found  in  the  mathematics, 
1* 


VI 


and  especially  in  geometry,  and  also  in  the  writings  of  the 
classical  jurists  of  the  Roman  law;  and,  at  least  in  our 
investigations^  it  can  never  be  departed  from  without  the 
risk  of  error.  Of  the  essential  characteristics  of  this  style 
the  writings  of  Hobbes  and  Austin  are  among  the  best  ex- 
amples; the  former,  on  the  whole,  superior;  but  the  lat- 
ter, in  their  analytical  parts,  though  lacking  the  graces 
of  rhetoric,  excelling  all  others  in  a  rigid  observance  of 
the  requirements  of  logic. 

My  own  style  I  have  sought  equally  to  adapt  to  the 
«ubject,  and  to  the  nature  of  our  investigations,  and  I  trust 
I  may  say  of  it,  without  vanity,  with  Hobbes,  that  while 
"  there  is  nothing  I  distrust  more  than  my  elocution,  nev- 
ertheless, I  am  confident,  excepting  the  mischances  of  the 
press,  it  is  not  obscure." 

Los  Angeles,  June  11,  1893. 


^^^  Of  THM 

uitivbrsitt; 

TABLE   OF  CO]S^TENTS. 


CHAPTER   I. 
Introductory . 

PAOK 

II.     Definition  of  Jurisprudence  and  Statement  of  Problems 

Involved 5 

§2.     The  Modern  English  Theory  of  Jurisprudence 8 

§3.     The  Common  Law  Doctrine  of   Rights  and  of  the  Law  9 

§4.     Hobbes'  Theory  of  Jurisprudence 9 

§5.     The  European  Doctrine  of  Sovereignty 10 


CHAPTER  II. 
Hobbes'  Theory  of  Jurisprudence. 

§1.     Introductory  Observations 13 

§2.     Statement  of  his  Theory  of  the  State 14 

Of  Rights 16 

Of  the  Law 17 

CHAPTER  m. 
Review  of  Hobbes'  Theory. 

§1.     Of  his  Theory  of  the  State 21 

§2.     Of  his  Theory  of  Rights 26 

§3.     Of  his  Theory  of  the  Law..... 28 

CHAPTER  IV. 

The  Bentham-Austin,  or  Legal  Theory  of 
Jurisprudence. 

§1.     The  Ethical  Theory  of  Bentham  and  Austin 31 

§2.     Their  Theory  of  the  State,  of  Rights,  and  of  the  Law ...     34 


CHAPTER  V. 

The  Recejnt  English  Jurists. 

§1.     General  Observations 37 

§2.     Sir  Henry  Maine 38 

(1)  His  Emendation  of  Austin's  Theory 39 

(2)  His  Views  as  to  Natural  Right 40 

§8.     Frederick  Harrison 42 

§4.     Frederick  Pollock 44 

§5.     William  Markby 46 

§6.     Thomas  Erskine  Holland 46 

§7.     Sheldon  Amos 47 

§8.     Professor  Huxley 48 

CHAPTER  VI. 

Review  of  the  Austin  Theory  of 
Jurisprudence. 

§1.     Introductory  Observations 50 

§2.     Of  his  Theory  of  the  State 51 

§3.     Of  his  Theory  of  the  Law   56 

§4.     Of  his  Theory  of  Rights 59 

§5.     Synthesis  of  the  Legal  and  Jural  Theories 60 

CHAPTER  VII. 

Of  Utilitarianism. 

§1.     Bentham  and  Austin's  Theory 62 

§2.     Mill's  Theory 65 

CHAPTER   VIII. 

Of  the  True  Nature  of  Rights  and  of 
THE  Law. 

§1.     Order  of  the  Argument  stated 68 

§2.     Argument  from  the  Usage  of  Language  and  from  Author- 
ity    69 

§3.     Argument  from  the  Historical  Development  of  the  Law. .  71 

§4.             "            '«      '(    Nature  of  Juridical  Rights 73 

§5.             ''            "      "         "       "    Jurisprudence 74 

§6.     Objections  Considered 79 


^i^  Of  TM*^^ 

[uwivbrsitt: 


CHAPTER  I. 

INTRODUCTORY. 

§  1.  Tlie  fundamental  problem  of  political  science 
is  to  determine  the  nature  and  extent  of  human  rights ; 
but  this  problem  relates  to  three  several  subjects,  which, 
though  intimately  connected,  require  separate  considera- 
tion. These  are  the  rights  or  powers  of  the  State,  the 
rights  of  individuals,  and  the  law ;  which  last  is  the 
means  by  which  rights,  public  and  private,  are  realized. 

Strangely  enough,  this  branch  of  political  science, — 
supremely  important  as  it  is,  —  is,  in  our  language,  at  the 
present  time,  without  a  distinctive  name,  generally  recog- 
nized as  belonging  to  it.  The  reason  of  which  is,  that 
the  term,  jurisprudence,  the  name  really  appropriate  to 
it,  and  by  which  alone  it  can  be  adequately  expressed, 
has  been  wrested  from  its  true  meaning  by  Austin  and 
his  followers,  for  the  purpose  of  denoting  certain  varying 
and  ill-defined  notions  of  their  own ;  and  the  conception 
originally  denoted  by  it  is  thus  left  without  a  term  to  ex- 
press it.  We  must,  therefore,  begin  by  restoring  the 
term  to  its  proper  meaning. 

The  subject  has  been  examined  with  care  by  Mr.  Hol- 
land, and,  though  his  conclusions  appear  to  me  to  be  er- 
roneous, his  views  upon  it  present  the  question  involved 
with  great  clearness,  and  may,  therefore,  be  referred  to 
with  advantage.  Jurisprudence,  he  says,  is  merely  the 
knowledge  of  jus :  but  it  happens  that  the  latter  term 
denotes,  "  not  merely  the  sum  total  of  laws,  but  also  the 
sum  total  of  rights,  (jura,  reohte,  droits,^  and  the  sum 
total  of  all  that  is  just,  (justum,  recht,  droity^;  and  hence 
jurisprudence,  accordingly  as  we  use  the  term,  jus,  may 
denote  "the  science  of  any  one  of  three  things,  viz:  (1) 
of  law,  (2)  of  rights,  (3)  of  justice."  These  several 
senses  of  the  term  he  regards  as  essentially  different,  and 
hence  is  of  the  opinion  that  one  of  them  must  be  adopted 
to  the  exclusion  of  the  others. 

Accordingly,  he  adopts  the  first  of  the  definitions  re- 
ferred to,  and  regards  it  as  a  piece  of  good  fortune  that 
when  we  thus  define  jurisprudence,  viz,  as  "  the  science 
2 


6 

of  law,"  we  are  spared  the  ambiguities  which  beset  the 
expression  of  that  proposition  in  Latin,  German,  and 
French,  and  which,  in  his  opinion,  have  greatly  obscured 
its  exposition  in  those  languages.^     In  this  Mr.  Holland 

JJur.  13,  13. 
agrees  with  Austin,  and  others  of  the  modern  English 
school  of  jurists,  all  of  whom  regard  the  ambiguity  of 
the  term,  jus^  droit,  recht,  etc.,  used  in  other  languages 
to  denote  the  law,  as  a  fruitful  source  of  confusion  and 
inaccuracy  of  thought ;  and  there  is,  perhaps,  no  other 
point  on  which  the  English  jurists  so  pride  themselves 
as  on  their  supposed  superiority  in  this  respect  to  their 
continental  brethren. 

Nor  is  there  any  other  with  reference  to  which  the 
vanity  of  their  pretentions  is  more  apparent ;  for  while 
there  is,  no  doubt,  a  certain  difference  in  the  several 
senses  of  the  term  jurisprudence,  referred  to  by  Mr. 
Holland,  yet  it  is  equally  certain, — as  will  be  more  fully 
^hown  in  the  sequel, — that,  in  whichever  sense  it  be  used, 
the  term  expresses,  under  certain  modifications,  the  same 
essential  idea. 

Thus  if, — as  we  are  admittedly  at  liberty  to  do,  pro- 
vided we  consistently  adhere  to  the  definition, — we  define 
jurisprudence  as  the  science  of  rights,  it  follows  that  it 
is  also  the  science  of  justice ;  for  justice  is  but  the  ob- 
servance of  rights,  or  the  rendering  to  every  man  his 
right. 

But,  according  to  a  conception  almost  universal,  and 
which  will  be  explained  more  fully  hereafter,  the  law  it- 
self is  but  the  practical  means  of  realizing  rights ;  and, 
if  this  conception  be  true,  the  term  jurisprudence  may 
also  be  used,  without  impropriety,  as  in  fact  the  lawyers 
habitually  use  it,  to  denote  the  science  or  methodized 
knowledge  of  the  law  of  private  right.  For  this  branch 
of  the  law  is  made  up  of  the  doctrine  of  rights,  as  recog- 
nized in  the  law,  (or,  in  other  words,  of  actionahle,  or 
juridical  rights,)  and  of  the  doctrine  of  actions;  which 
are  but  the  forms  ox  formnJm  used  for  the  enforcement 
of  rights,  (or,  as  defined  by  Heineccius,  medium  jus  per - 
sequendi)  ;  and,  hence,  if  jurisprudence  be  regarded  as 
the  science  of  rights,  or  of  justice,  the  subject  of  j)rivate 
right,  OY  justice  as  actually  administered  by  the  courts, 
must  be  regarded  as  belonging  to  it. 

It  appears,  then,  that  of  the  three  meanings  of  the  term 
jurisprudence,  distinguished  by  Mr.  Holland,  the  first  and 


,>-  Ow  ^' 


<^^ 


second  are  identical;  and  that  the  third  is  entirely  con- 
sistent with  these,  provided  it  be  assumed,  (as  it  is  one 
of  the  principal  purposes  of  this  work  to  establish,)  that 
the  rights  with  which  the  law  deals,  are  in  fact,  as  they 
are  in  name,  rights^  in  the  proper  sense  of  the  term. 

On  this  assumption,  therefore,  jurisprudence  may  be 
defined  to  be  the  science  or  doctrine  of  rights,  or  of  jus- 
tice or  right ;  and  may  be  regarded  as  theoretical  or  prac- 
tical, accordingly  as  we  have  in  view  the  abstract  theory 
of  rights,  or  the  doctrine  of  rights  as  actually  realized  in 
the  community  by  means  of  the  law,  or  in  other  words, 
juridical  rights. 

With  regard  to  the  former,  perhaps  the  best  illustration 
of  its  scope  and  methods  in  recent  English  literature  is 
presented  by  the  political  works  of  Mr.  Herbert  Spencer, 
and  especially  the  "  Social  Statics  ''  and  "•  Justice  "  ;  both 
of  which — the  former  preferably,  and  the  latter  with  equal 
propriety — might  have  been  entitled,  "  Jurisprudence.*' 
Of  the  latter,  or  practical  jurisprudence,  the  best  models 
are  presented  by  the  works  of  the  classical  jurists  of  the 
Roman  Law,  and  those  of  the  modern  civilians,  and  espec- 
ially Savigny  ;  and  also  by  the  works  of  Grotius,  and 
other  writers  on  the  Law  of  Nations  and  of  Nature.^ 

This  view  of  the  nature  of  jurisprudence,  though  repu- 
diated by  the  modern  English  jurists,  and  consequently, 
since  the  time  of  Austin,  somewhat  obsolete  with  us,  is 
by  no  means  a  novel  one  ;  it  is,  in  fact,  the  orthodox  view 
of  the  subject,  in  which  jurists  generally,  from  the  time 
of  Aristotle,  have,  with  the  exception  of  Austin  and  his 

iln  this  connection  the  following  observations  of  Leibnitz  on  the 
Roman  lawyers  will  be  found  interesting: 

"I  have  often  said,— observes  that  great  jurist  and  philosopher, — 
that,  after  tke  writings  of  the  geometricians,  there  exists  nothing  which 
in  point  of  strength,  subtlety  and  depth,  can  be  compared  to  the  works 
of  the  Roman  lawyers  ;  and,  as  it  would  be  scarcely  possible  from  in- 
trinsic evidence  to  distinguish  a  demonstration  of  Euclid's  from  one  of 
Archimedes  or  Apollonius,  (the  style  of  each  of  them  appearing  no  less 
uniform  than  if  reason  herself  were  speaking  through  her  organs,)  so 
also  the  Roman  lawyers  all  resemble  each  other  like  twin  brothers  ; 
inasmuch,  from  the  style  alone  of  any  particular  opinion  or  argument, 
hardly  any  conjecture  could  be  formed  ab:ut  its  author  ;  nor  are  the 
traces  of  a  refined  and  deeply  meditated  system  of  natural  jurisprudence 
anywhere  to  be  found  more  visible  or  in  greater  abundance.  And  even 
in  those  cases  where  its  principles  are  departed  from,  in  compliance 
with  the  language  consecrated  by  technical  forms,  or  in  consequence  of 
new  statutes  or  of  ancient  traditions,  the  conclusions  which  the  assumed 
hypothesis  renders  it  necessary  to  incorporate  with  the  external  dictates 
of  right  reason  are  deduced  with  a  soundness  of  logic  and  with  an  in- 
genuity that  excites  admiration.  Nor  are  these  deviations  from  the  law 
■of  nature  so  frequent  as  is  commonly  supposed."  Cited  by  Dugald 
Stewart,  Philosophy  of  the  Human  Mind,  2,  3,  3. 


8 

followers,  substantially  concurred.  This,  for  the  present, 
will  sufficiently  appear  by  reference  to  the  definitions  in 
the  Institutions  and  Pandects  of  Justinian,  given  in  the 
note,  from  which  the  definitions  in  the  text  are  taken. 
Of  the  introductory  parts  of  these  works,  the  modern 
English  jurists,  from  Austin  down,  are  wont  to  speak 
with  contemptuous  severity ;  but,  in  fact,  they  may 
be  taken  as  the  best  expression  extant, — in  brief  space, — 
of  the  true  nature  and  general  principles  of  the  law  ;  and 
as  such  they  have  been  generally  accepted  by  continental 
jurists,  and,  until  lately,  by  the  jurists  of  our  own  lavv.^ 

§  2.  Thus  defined,  jurisprudence,  as  has  been  in- 
timated, may  be  regarded  as  treating  of,  (1)  the  Theory 
of  the  State,  (2)  the  Theory  of  Private  Rights,  and  (3) 
the  Theory  of  the  Law. 

The  several  problems  thus  presented  by  jurisprudence 
have  given  rise  to  many  conflicting  theories  ;  and  these — 
bearing  as  they  do  upon  the  most  vital  questions  of  prac- 
tical politics,  and  imperatively  demanding,  in  the  opin- 
ions of  their  advocates,  a  realization  in  practice — have 
naturally  aroused  the  strongest  passions  and  prejudices 
of  manki'nd.  But,  fortunately,  or  unfortunately,  there  is 
one  country  in  which  for  a  while  all  conflict  seems  to  have 
ceased,  namely,  England;  where  of  late  years  one  theory 
has  become  so  predominant — at  least  among  theorists — 
as  practically  to  exclude  all  others,  and  to  be  regarded, 
like  the  Copernican  theory  of  the  universe,  or  the  doc- 
trine of  evolution,  as  no  longer  within  the  pale  of  legiti- 
mate discussion. 

This  theory,  briefly  stated,  is  that  the  power,  or  right 
of  the  State  over  its  subjects  is,  from  its  essential  nature, 
necessarily  unlimited  or  absolute  ;  that  the  law  is  but  an 
expression,  and  rights  and  obligations  but  the  creatures, 
of  the  sovereign  will  ;  and,  consequently,  that  in  that  will 
alone  is  to  be  found  the  standard  of  the  just  and  of  the  un- 
just. From  this  it  follows,  and  the  theory,  in  fact,  asserts, 
that  the  notions  of  natural  right  or  justice  and  of  natural 

^'*  Justitia,  (i.  e.  the  virtue,)  est  constans  etperpetiia  rolvntasjus  suum 
caique  tribuendi."  Hence  abstract,  or,  as  it  is  called  by  Aristotle,  polit- 
ical justice,  consists  in  rendering  to  every  man  his  right  (Jks  smtm  cnique 
tribuere). 

Jnrispradentia  est  •  »  *  jiisti  atque  injiisti  scientia;  and  hence,  it 
is  said  :  Prsecepta  juris  sunt  honeste  vivere,  alterum  non  laedere,  suum 
cuique  tribuere. 

Jurisprudence,  or  rather  jus,  (the  law)  is  also  defined  by  Celsus,  as 
"the  art  of  the  good  and  equal"  (ars  boni  et  sequi)  ;  and  he  asserts — 
and,  as  I  will  endeavor  to  show,  truly — that  it  is  "  a  true,  and  not  a 
pretended  philosophy." 


9 

rights  are  mere  delusions  ;  of  which  to  speak  seriously  (to 
use  an  illustration  of  Sir  Henry  Maine)  is  as  though  one 
were  to  assert  the  Ptolemaic  theory  of  the  heavens,  or  to 
pretend  to  listen  to  the  music  of  the  spheres. 

Of  this  doctrine,  as  originally  conceived  by  Bentham, 
and  as  subsequently  developed  into  a  complete  and  coher- 
ent system  by  Austin,  and  of  the  modifications  it  has  re- 
ceived at  the  hands  of  later  writers,  I  propose  to  give  a 
brief  history,  and,  at  the  same  time,  to  subject  it  to  a  crit- 
ical examination.  But  there  are  several  other  theories, 
one  directly  opposed  to  this,  and  the  others  intimately 
connected  with  it,  which,  in  order  that  the  questions  in- 
volved may  be  distinctly  presented,  must  also  be  consid- 
ered. 

§  3.  Of  these,  the  first  to  be  mentioned  is  involved 
in  the  popular  conception  of  rights  ;  which,  as  usually 
happens  in  such  matters,  has  been  adopted  by  the  law- 
yers, and  thus  become  an  integral  part  of  the  common 
law. 

According  to  this  doctrine, — of  which  the  modern 
English  theory  is  on  every  point  the  direct  negation, — 
rights,  or  at  least  certain  rights,  exist  naturally,  and  are, 
therefore,  not  the  creatures  but  the  cause  of  the  existence 
of  government;  which,  in  fact,  owes  its  origin  to  the 
necessity  of  securing  their  observance,  and  in  advanced 
societies  can  exist  only  upon  the  condition  of  substantially 
securing  them.  Hence  the  necessity  of  establishing  jus- 
tice, or  securing  the  observance  of  rights,  as  it  is  the 
cause  (or  ra'ison  (Vitre)  and  the  condition  of  government, 
is  also  the  measure  of  its  power.  That  this  is  the  doctrine 
of  our  law  will  not  perhaps  be  generally  conceded,  but 
that  it  is  so  will  sufficiently  appear  in  the  progress  of  our 
investigations. 

§  4.  In  the  construction  of  their  theory  Bentham 
and  Austin  availed  themselves  largely  of  the  reasoning  of 
Hobbes  ;  and  hence  the  theory  of  the  former  is  commonly 
regarded  as  in  substance  a  development  of  that  of  the 
latter;  but,  in  fact,  the  two  theories  differ  radically  on  the 
most  essential  points. 

The  points  in  which  they  agree  are  in  the  psychologi- 
cal theory  that  men  are  not  susceptible  of  any  other  than 
self-reorarding  motives,  and  in  the  doctrine  of  absolute 
sovereignty  ;  but,  with  regard  to  the  nature  of  rights,  and 
of  the  law,  they  differ  entirely, — Hobbes,  on  these  points, 
as  will  be  seen,  agreeing  substantially  with  the  Common 


10 

Law  doctrine,  and  Bentham  and  Austin  inventing  a  the- 
ory altogether  new.  It  will  be  necessary,  therefore,  on 
this  account,  as  well  as  on  account  of  its  intrinsic  interest, 
to  examine  at  length  the  philosophy  of  Ilobbes. 

§  5.  The  theory  of  the  State  asserted  by  Hobbes 
and  Austin,  and  now  generally  prevailing  in  England, 
though  in  the  peculiar  form  it  there  assumes  not  else- 
where accepted,  is,  in  its  fundamental  character,  identical 
with  the  modern  doctrine  of  sovereignty  as  commonly 
held  on  the  continent.  The  difference  between  the  two 
is  that  the  English  theory  rests  upon  an  attempted  dem- 
onstration, and  has  been  logically  developed  to  its  ulti- 
mate consequences,  and  thus  become  a  coherent  system. 
But  this  is  not  the  case  with  the  more  general  doctrine 
of  sovereignty,  which,  as  commonly  held,  is  scarcely 
more  than  a  vague  opinion,  assumed  without  any  attempt 
to  demonstrate  it,  and  without  a  clear  perception  of  the 
consequences  logically  deducible  from  it. 

But  it  is  in  this  form  that  political  theories  are  most 
formidable  ;  for  when  a  theory  is  logically  developed  its 
weak  points  are  made  apparent,  and  often  the  very  at- 
tempt to  demonstrate  it  will,  by  way  of  reductio  ad  ah- 
surdum,  show  its  falsity.  But  a  mere  opinion  until  thus 
tested  may,  and  generally  does,  vary  in  meaning,  accord- 
ing to  the  varying  temper  of  the  mind  and  the  exigencies 
of  argument,  and  thus  becomes  an  instrument  by  which 
the  most  opposite  conclusions  may  be  proved, — as,  for  ex- 
ample, is  notably  illustrated  by  the  different  uses  made  of 
the  doctrine  of  a  social  contract  by  Hobbes,  Locke  and 
Rousseau,  respectively.  It  will  be  necessary,  therefore, 
before  entering  upon  the  consideration  of  the  English  the- 
ory of  the  State,  to  make  a  few  observations  upon  the  doc- 
trine of  sovereignty,  with  the  view  of  justifying  the  as- 
sertion that  as  commonly  held  it  is  a  mere  unverified 
opinion,  which  cannot  be  sustained  otherwise  than  on  the 
reasoning  of  Hobbes,  Austin  and  other  English  writers ; 
and  which,  therefore,  if  sustained,  must  take  the  form  in 
which  it  is  asserted  by  the  English  jurists,  and  be  regard- 
ed merely  as  an  undeveloped  form  of  their  theory. 

The  term,  sovereign,  means  simply,  superior.^  In  a 
political  sense,  it  denotes  merely  the  monarch,  or  other 
supreme  officer,  or  organization  in  the  state;  and  its 
correlative,  sovereignty^  the   power  vested  in  the  sover- 

^Low  Latin,  Snperanns,  formed   with  suffix,  anus  from  Latin  super, 
**  above."    Skeat. 


11 

eign,  whether  consisting  of  one  or  many.  Both  terms  are 
strictly  comparative,  and  there  is  nothing  in  their  origi- 
nal meaning  to  imply  that  the  sovereign  or  supreme 
power  in  the  state  is  absolute  or  unlimited. 

Originally  the  terms  were  applied  to  the  form  of  sover- 
eignty at  one  time  almost  universally  prevailing  in  Eu- 
rope, which  was  that  of  a  monarch  or  single  sovereign  ; 
but  with  the  development  of  improved  forms  of  political 
organization,  their  application  has  been  extended  to  other 
forms  of  government,  and  the  term  sovereignty  has  thus 
come  to  denote  the  supreme  political  power  of  a  state 
wherever  vested.  But  obviously,  in  its  original  applica- 
tion to  a  single  sovereign,  it  denoted  a  single  thing,  or 
unit,  namely,  the  power  of  a  single  man,  which  was  neces- 
sarily indivisible  ;  and  this  notion  it  has  carried  with  it  in 
its  new  application  to  a  multiplex  sovereign.  Hence, 
sovereignty,  whether  vested  in  a  single  monarch,  or  in 
several  different  officers,  or  classes  of  officers,  or  in  differ- 
ent departments,  or,  even,  as  in  federal  governments,  in 
different  states,  is  habitually  conceived  to  be  a  single  indi- 
visible power  ;  and  thus  a  problem  of  great  difficulty  pre- 
sents itself,  to  the  great  bewilderment  of  political  theo- 
rists, namely,  the  problem  of  determining  where,  in  each 
particular  case,  the  sovereignty  is  vested, — a  task  similar 
to  that  of  locating  an  ignis-fatuus  or  will  o'-the-wisp,  and 
which  in  fact,  as  we  shall  see,  admits  of  as  many  varying 
solutions  as  the  fancy  may  dictate.  But  however  the 
problem  is  solved,  or  wherever  the  sovereignty  be  re- 
garded as  located,  it  is  generally  agreed  that  it  is  in  its 
nature  unlimited  and  absolute,  as  well  as  indivisible.  "  In 
all  forms  of  government,"  says  Blackstone, — in  a  passage 
often  quoted,  and  which  voices  an  opinion  almost  univer- 
sal,— ''  there  is,  and  must  be,  "^  *  *  a  supreme,  irre- 
sistible, absolute,  uncontrollable  authority,  in  which  the 
jura  summi  imperii,  or  the  right  of  sovereignty,  exists."^ 
The  genesis  of  this  theory  is  readily  accounted  for  by 
the  historical  events  out  of  which  it  grew.  In  the  strug- 
gle between  the  kingly  power  and  that  of  the  feudal 
lords,  in  the  Middle  Ages,  the  former  naturally  came  to 
be  regarded  as  the  last  refuge  of  personal  security,  and 
the  only  hope  of  organized  social  life  ;  and  out  of  this 
arose  an  almost  universal  sentiment  in  its  favor,  which 
found  its  expression  in  the  modern  doctrine  of  sover- 
eignty ;  and  this  doctrine,  either  in  its  original  form,  as 
11  Com.  48-9. 


12 

applied  to  a  single  monarch,  or,  in  a  secondary  sense,  as 
applied  to  other  forms  of  government,  has  come  to  be  so 
generally  received  in  the  political  philosophy  of  Europe, 
that  the  term  itself,  in  popular  use,  carries  with  it  the 
connotation  of  being  an  absolute,  despotic  power,  or  right. 
And  this  notion,  intensified  by  the  events  of  the  great 
English  Civil  War,  and  of  the  French  Revolution,  con- 
tinues to  prevail  in  Europe,  and  especially  in  England, 
and  also  to  a  considerable  extent  in  this  country. 

Thus,  the  term  sovereignty  has  come  to  be,  what  is 
called,  a  question-begging  term.  For,  as  commonly  used, 
it  assumes  the  theory  connoted  by  it  ;  and  argument  in 
support  of  it  becomes  superfluous,  and  against  it  impossi- 
ble. For,  when  an  opinion  rests  upon  the  false  sense  of 
a  term,  it  will  not  be  affected  by  the  refutation  of  any 
reasoning  that  may  be  urged  in  its  support,  but  will  sur- 
vive, though  every  conceivable  argument  in  its  favor  be 
shown  to  be  untenable, — in  this  respect,  the  opposite 
seeming  to  take  place  from  what  occurs,  under  analogous 
circumstances,  in  the  vegetable  kingdom  ;  where,  if  the 
roots  of  a  plant  be  destroyed,  it  will  die  ;  but  an  opinion 
rooted  in  a  general  prejudice,  though  the  reasoning  upon 
which  it  rests  be  refuted,  will  seem  for  a  while  to  seek, 
and  apparently  to  find  new  roots,  and  a  renewed  life. 

It  may  however  be  safely  assumed,  that,  if  there  are  any 
arguments  in  favor  of  the  doctrine  of  absolute  sover- 
eignty, they  have  not  escaped  the  unrivalled  acuteness 
and  penetration  of  Hobbes  and  Austin ;  and  that  it  must 
therefore  stand  or  fall  with  the  reasoning  adduced  by 
them  in  support  of  it. 


CHAPTER  II. 

STATEMENT   OF    HOBBES'    THEORY. 

§  1.  All  men  are  more  or  less  blinded  by  preju- 
dice and  passion ;  and  impartiality  or  indifference  to  the 
result  of  our  reasoning  is  the  rarest  of  all  logical  quali- 
fications. On  this  account  allowance  must  always  be 
made,  as  in  astronomy,  for  the  *' personal  equation;" 
which  is  much  more  readily  done  in  the  case  of  the  as- 
tronomer, whose  mind  is  generally  indifferent  to  the  re- 
sult, and  the  personal  error  therefore  regular,  than  in 
the  science  of  human  nature,  where  nearly  every  prob- 
lem excites  the  prejudices  and  passions  of  the  mind  and 
heart ;  and  where,  in  general,  the  theory  is  first  formed, 
and  the  reasoning  to  support  it  afterward  sought,  and 
the  wish  is  often  the  father  to  the  thought. 

]n  the  case  of  Hobbes,  this  correction  is  readily  made. 
He  lived  during  the  struggle  between  the  King  and  Par- 
liament in  England,  and  was  profoundly  impressed,  both 
by  experience  and  observation,  with  the  misery  occasioned 
by  civil  war.  And  this  impression  was  probably  exaggerated 
by  congenital  disposition  ;  for  it  is  related  of  liim  that  he 
was  brought  prematurely  into  the  world  through  his 
mother's  fright  at  rumors  of  the  coming  of  the  Spanish 
Armada.  From  this,  and  the  associations  of  his  life,  he 
was  naturally  led  to  espouse  the  royal  cause,  and  it 
cannot  be  doubted  that  his  theory  was  thus  largely 
influenced.  His  works  were  composed  at  an  advanced 
age,  long  after  his  political  views  had  been  formed,  and, 
from  the  circumstances  under  which  they  were  written, 
as  well  as  from  internal  evidence,  are  obviously  to  be  re- 
garded rather  as  a  political  polemic  in  support  of  a  pre- 
conceived conclusion,  than  as  an  impartial  investigation 
of  the  political  problem.  Hence,  while  all  the  resources 
of  his  powerful  and  methodical  genius  are  brought  to 
the  support  of  his  thesis,  there  is  much  in  his  works  that 
it  would  be  diflScult  to  believe  represented  his  convic- 
tions, were  we  not  familiar  in  our  own  times  with  the 
force  of  political  prejudice. 

But  the  task  of   making  proper   allow^n^fi^or  these 


of  THI 

'UiriVBRSITT. 


14 

misleading  influences  is,  in  the  case  of  men  of  Hobbes* 
logical  turn  of  mind,  immensely  simplified  by  their  gen- 
eral accuracy  of  thought  and  expression,  which  facilitates 
the  detection  of  error.  And  it  also  usually  happens,  and 
notably  so  in  the  case  of  Hobbes,  that  writers  of  this 
character,  in  the  more  abstract  parts  of  their  work, 
where  prejudice  has  less  place  to  operate,  themselves  fur- 
nish us  with  the  means  of  correcting  their  errors.  Hence, 
the  value  of  a  philosophical  work  is  not  to  be  estimated 
by  its  success  or  failure  in  establishing  completely  the 
main  thesis  to  which  it  is  devoted,  for  in  this  respect 
nearly  all  have  failed ;  but  by  the  partial,  and  often  un- 
dervalued results  obtained,  and  chiefly  by  the  more  or 
less  logical  character  of  the  method  of  reasoning  observed. 
The  main  excellence  of  thought  is  clearness  and  pre- 
cision ;  to  be  intelligently  and  clearly  right  is  the  great- 
est achievement,  but  it  is  no  mean  achievement  to  be 
logical,  even  in  error ;  and,  in  fact,  such  errors  have 
been  the  means  by  which  philosophy  has  advanced. 
Thus  it  happens  that  incomparably  the  most  valuable 
contributions  to  political  philosophy  in  modern  times  are 
the  works  of  Hobbes  and  Austin.  For,  though  their  con- 
clusions are  often  false  and  paradoxical,  they  have  at 
least  taught,  by  actual  example,  the  true  method  appli- 
cable to  the  science  of  jurisprudence,  and  the  only 
method  that  can  be  looked  to  for  any  further  progress  in  it.^ 
§  2.  The  theory  of  Hobbes  may  be  stated  in  the 
following  propositions,  which  are  classified  accordingly 
as  they  relate  to  the  theory  of  the  state,  of  rights.,  or  of 
the  law.2 

Of  the  State. 

The  fundamental  assumptions  of  Hobbes'  philosophy 
are  the  denial  of  moral  distinctions,  as  naturally  existing, 
and  of  the  possibility  of  any  motive  of   human  conduct 

1  ''When  Leibnitz,  in  the  beginning  of  the  eighteenth  century,  re- 
viewed the  moral  writers  of  modern  times,"  says  Mackintosh  in  his 
dissertation  on  the  Progress  of  Ethical  Philosophy,  "  his  penetrating 
eye  saw  only  two  who  were  capable  of  reducing  morals  and  jurispru- 
dence to  a  science.  So  great  an  enterprise  might  have  been  executed 
by  the  deep,  searching  genius  of  Hobbes,  if  he  had  not  set  out  from  evil 
principles  ;  or  by  the  judgment  and  learning  of  the  incomparable 
Grotius,  if  his  powers  had  not  been  scattered  over  many  subjects,  and 
his  mind  distracted  by  the  cares  of  an  agitated  life." 

20ur  citations  are  to  the  Leviathan,  in  the  edition  of  Mr.  Morley,  pub- 
lished by  George  Eoutledge  &  Sons,  London,  Glasgow,  and  New  York, 
1887. 


16 

other  than  a  regard  to  self-interest.^  From  the  conflict 
thus  necessarily  arising  between  the  desires  of  men,  i.  e  , 
upon  the  assumed  hypothesis  of  an  absence  of  all  moral 
restraint,  they  become  enemies ;  and,  in  the  absence  of 
government,  there  results  a  state  of  never-ending  war  of 
every  man  against  every  man,  in  which  condition  *'  the 
notions  of  right  and  wrong,  just  and  unjust,  have  no 
place.  *  *  *  Force  and  fraud  are,  in  war,  the  car- 
dinal virtues.  "2 

But,  from  this  condition,  means  of  escape  are  pre- 
sented, consisting  partly  in  the  passions,  such  as  fear  of 
death,  desire  of  commodious  living,  etc.,  and  partly  in 
the  reason,  which  suggests  certain  articles  of  agreement 
called  "  the  laws  of  nature,"  but  which  are  improperly  so 
called,  being,  in  fact,  merely  dictates  of  reason.^  "  The 
first  and  fundamental  law  of  nature  "  is  that  men  ought 
to  endeavor  to  secure  peace  ;  and  from  this  "  is  derived 
the  second  law,  that  a  man  be  willing,  when  others  are  so 
too,  *  *  *  to  lay  down  his  right  to  all  things,  and  be 
contented  with  so  much  liberty  against  other  men  as  he 
would  allow  other  men  against  himself."^  And  from 
this  law  a  third  follows,  that  men  perform  their  cove- 
nants ;  for  otherwise  the  condition  of  war  will  still  con- 
tinue.^ In  this  (the  third)  law,  '*  consisteth  the  fountain 
and  original  of  justice "  ;  which  is  defined  to  be  the 
"  keeping  of  covenants  " ;  and  injustice,  to  be  *'  the  not  per- 
formance of  covenant."  But  Hobbes  here  falls  into  an 
inconsistency, —  adding  that  "whatsoever  is  not  unjust 
is  just."  Hence, —  as  we  shall  see  is  asserted  infra^  — 
where  there  is  no  covenant  there  can  be  no  breach,  and 
therefore  everything  is  just;  which  is  inconsistent  with 
the  definition  that  justice  is  the  ''  keeping  of  covenant."^ 

But,  in  the  absence  of  government,  covenants  are  in- 
valid, because  there  is  no  security  for  their  performance, 
*'  and  therefore  he  who  performeth  first  does  but  betray 
himself  to  his  enemy ;  contrary  to  the  right,  he  can  never 
abandon,  of  defending  his  life  and  means  of  living."' 

Hence  '*  before  the  names  of  just  and  unjust  can  have 
place,  there  must  be  some  coercive  power  to  compel  men 
equally  to  the  performance  of  their  covenants,  by  the  ter- 
ror of  some  punishment,  greater  than  the  benefit  they  ex- 
pect by  the  breach  of  their  covenant;"  in  the  absence  of 


iLeviatba 

m,  32,  33. 

^Id.  66. 

6Id.  72,  73. 

2Id.  65. 

5Id.  71. 

7Id.  69,  72. 

8Id.  66. 

16 

which  *'all  men  liave  a  right  to  all  things,"  and  *' nothing 
is  unjust,"^  but  "  every  man  will  and  may  lawfully  rely 
on  his  own  strength  and  art  for  caution  against  all  other 
men. ''2 

The  only  way  to  erect  such  a  coercive  power,  and  thus 
to  escape  from  the  natural  condition  of  war,  is  for  men 
''  to  confer  all  their  power  and  strength  upon  one  man,  or 
upon  one  assembly  of  men,  that  may  reduce  all  their 
wills,  by  plurality  of  voices,  into  one  will  -5^  -^  •55- 
Th  is  is  more  than  consent  or  concord  ;  it  is  a  real  unity 
of  them  all,  in  one  and  the  same  person,  made  by  cove- 
nant of  every  man  with  every  man  ;  ^  *  *  This 
done,  the  multitude,  so  united  in  one  person,  is  called  a 
commonwealth  ;  in  Latin,  civitas.  This  is  the  generation 
of  that  great  '*  Leviathan,"  or,  rather,  to  speak  more  rev- 
erently, of  that  "  mortal  God,"  to  which  we  owe,  under 
the  immortal  God,  our  peace  and  defence."^ 

The  sovereign  is  created  not  by  covenant  between  him- 
self and  the  people,  but  by  covenant  of  the  people  only, 
"  one  to  another,"  and  consequently  there  can  be  no 
breach  of  covenant  on  the  part  of  the  sovereign.^  A  cove 
nant  between  the  sovereign  and  the  people  may  indeed 
exist,  but  it  is  inoperative,  ''  for  want  of  a  superior  power 
to  enforce  it."^ 

All  men  are  equally  bound  by  this  covenant  of  society : 
he  who  consents,  by  his  covenant;  and  he  who  does  not, 
because,  unless  his  consent  be  assumed,  he  is  "  left  in 
the  condition  of  war  he  was  before,  wherein  he  (may), 
without  injustice,  be  destroyed."^ 

The  sovereign  power  is,  necessarily,  indivisible.  *'  For 
powers  divided  mutually  destroy  each  other. "^  And  the 
disposal  of  the  succession  is  also  necessarily  in  the  exist- 
ing sovereign.  For,  if  not,  then  on  his  death  '*is  the 
commonwealth  dissolved,  and  the  right  is  in  him  that 
can  get  it."^ 

Of  the  Nature  of  Rights. 

**  Right  consisteth  in  the  liberty  to  do  or  forbear ; " 
"for  nothing  is  signified  by  the  word  'right'  than  that 
liberty  which  every  man  has  to  use  his  natural  faculties 
according  to  right  reason."^ 


11(1.  72. 

Td.  85. 

'Id.  93. 

2Id.  82. 

5Id.  85,  8(J. 

8Id.  93. 

8Id.  84. 

Old.  86. 

9Id.  66. 

17 

"  The  right  of  nature,'*  or  ^^jus  naturale''  consists  "in 
the  liberty  each  man  hath  to  use  his  own  power  as  he  will 
himself  for  the  preservation  of  his  own  nature  ♦  ♦  ♦ 
and  consequently  of  doing  anything  which,  in  his  own 
judgment  and  reason,  he  shall  conceive  to  be  the  aptest 
means  thereunto."  Hence,  *'  every  man  hath  a  right  to 
everything,  even  to  another's  body."^ 

In  a  state  of  political  society,  this  natural  right  is  lim- 
ited by  the  law  or  expressed  will  of  the  sovereign,  and 
**the  liberty  of  the  subject  lieth,  therefore,  only  in  those 
things  which,  in  regulating  their  actions,  the  sovereign 
hath  pretermitted,  such  as  the  liberty  to  buy  and  sell,  and 
otherwise  contract,  etc.";^  but,  "in  all  kinds  of  actions 
by  the  law  pretermitted,  men  have  the  liberty,"  (or  right) 
*'of  doing  what  their  own  reason  shall  suggest  for  the 
most  profitable  to  themselves."^  Hence,  "  Right,"  (i.  e., 
rights  in  the  aggregate)  "  is  that  liberty  which  the  law 
leaveth  us."* 

Of  the  Nature  of  the  Law. 

There  is  some  inconsistency,  or  at  least  apparent  incon^ 
sistency,  in  the  views  of  Hobbes  as  to  the  nature  of  the 
law,  arising  from  the  ambiguity  of  that  term ;  which  is 
sometimes  used  to  denote  a  statute,  or  aggregate  of  stat- 
utes {lex)^  and  sometimes  to  denote  the  lent),  (or  jus). 
The  two  views  will,  therefore,  require  a  separate  state- 
ment. 

The  first  is  thus  expressed  : 

"  The  civil  law  is,  to  every  subject,  those  rules  which 
the  commonwealth  has  commanded  him,  by  words,  writ- 
ing, or  other  sufficient  signs  of  the  will,  to  make  use  of 
for  the  distinction  of  right  and  wrong ;  that  is  to  say,  of 
what  is  contrary,  and  what  is  not  contrary  to  the  rule."^ 

Here  the  term  law  is  obviously  used  in  the  sense  of  lex, 
which  Hobbes  expressly  opposes  to  the  term  jus.  "  For,"^ 
as  he  says,  "  right  is  liberty,  namely,  that  liberty  which 
the  civil  law  leaves  us ;  but  civil  law  is  an  obligation, 
and  takes  from  us  the  liberty  which  he  law  of  nature 
gives  us.  Nature  gave  a  right  to  every  man  to  secure 
himself  by  his  own  strength,  and  to  invade  a  suspected 
neighbor  by  way  of  prevention ;  but  the  civil  law  takes 

lid.  65,  66.  ^De  Corpore  Politico,  B.  2,  Clu  10,  Sec.  5. 

nd.  101.  5Lev.  123. 

aid. 


18 

away  that  liberty  in  all  cases  where  the  protection  of 
the  law  may  be  safely  stayed  ;  for  insomuch  lex  and  jus 
are  as  different  as  obligation  and  liberty."^  Or,  as  ex- 
pressed in  another  work  :  "  The  names  jus  and  lex,  that 
is  right  and  law,  are  often  confounded  ;  yet  scarcely  are 
there  two  words  of  more  contrary  effect ;  for  right  is  that 
liberty  which  the  law.  leaveth  us,  and  law  is  that  restraint 
by  which  we  mutually  agree  to  abridge  one  another's 
liberty."2 

According  to  this  view,  it  would  follow  that  the  courts 
would  have  to  be  regarded  as  dealing  principally  with 
matters  outside  of  the  law  ;  for  the  principal  function  of 
courts  of  civil  jurisdiction  is  to  enforce  rights ;  and  the 
principles  by  which  the  courts  are  governed  in  doing  so 
constitute  a  part,  and  indeed  the  principal  part,  of  what 
the  Romans  called  jus,  and  what  we,  —  but,  in  Hobbes' 
view,  improperly,  —  call  the  law;  which  includes  not 
only  jus,  or  right,  in  the  strict  sense,  but  also  lex.  But, 
according  to  another  and  more  deliberate  view  of  Hobbes, 
the  law  of  nature,  which  is  but  another  name  for  natural 
right,  or  justice,  is  part  of  the  civil  law  of  every  state  ; 
and  it  is  the  function  of  the  judge  to  administer  it  as 
he  would  any  other  part  of  the  law.  Thus  regarded, 
therefore,  the  law  is  no  longer  opposed  to,  but  includes 
jus  or  right.  Here,  it  is  obvious,  the  term  civil  law 
is  used  in  the  sense  of  the  Latin  jus,  or  in  the  sense  of 
droits  rechU  derecho,  &c.,  in  other  languages  ;  or,  in 
other  words,  it  would  seem  that  Hobbes  himself  falls  into 
the  usage  which  he  has  elsewhere  reprobated.  And  this 
he  in  fact  does,  though,  as  we  shall  see,  he  attempts  to 
reconcile  the  inconsistency  of  the  two  propositions. 

On  this  point,  more  on  account  of  the  intrinsic  interest, 
and  value  of  his  views  on  the  nature  of  the  law,  than  on 
account  of  the  argument,  which  will  be  found  to  be  man- 
ifestly untenable,  I  quote,  somewhat  at  more  length  than 
usual,  his  own  language  : 

"  The  law  of  nature  and  the  civil  law  contain  each 
other,  and  are  of  equal  extent.  For  the  laws  of  nature, 
which  consist  of  equity,  justice,  gratitude,  and  other 
moral  virtues  on  these  depending,  in  the  condition  of 
mere  nature,  as  I  have  said  before,  *  *  ^  are  not 
properly  laws,  but  qualities  that  dispose  men  to  peace  and 
obedience.     When  a  commonwealth  is  once  settled,  then 

lid.  134. 

2De  Corpore  Politico,  B.  2,  Ch.  10,  Sec.  5. 


r^*Ol  THX 


19 


lore^^a^^^^eBi^^^men  the 


are  they  actually  laws,  and  not  before, 
commands  of  the  commonwealth^  ajid,  therefore,  also  civil 
laws.  For,  it  is  the  sovereign  power  that  obliges  men  to 
obey ;  for,  in  the  differences  of  private  men,  to  declare 
what  is  equity,  what  is  justice,  and  what  is  moral  virtue, 
and  to  make  them  binding,  there  is  need  of  the  ordinances 
of  sovereign  power  and  punishment,  to  be  ordained  for 
5uch  as  shall  break  them  ;  which  ordinances  are^  there- 
fore^ a  part  of  the  civil  laic.'' 

"  The  law  of  nature,  therefore,  is  a  part  of  the  civil  law 
in  all  commonwealths  of  the  world.  Reciprocall}^  also, 
the  civil  law  is  a  part  of  the  dictates  of  nature.  For  jus- 
tice,— that  is  to  say  performance  of  covenant,  and  giving 
to  every  man  his  own, — is  a  dictate  of  nature.  But  every 
subject  in  a  commonwealth  hath  covenanted  to  obey  the 
civil  law."  **  Civil  and  natural  laws  are,  therefore,  not 
different  kinds,  but  different  parts  of  law  ;  whereof  one 
part,  being  written,  is  called  civil ;  the  other,  unwritten, 
natural.^ 

*' A  law  that  obliges  all  the  subjects  *  *  *  that  is 
not  written,  or  otherwise  published  in  such  places  as  they 
may  take  notice  of,  *  "^  "^  is  a  law  of  nature.  ^  * 
^  The  laws  of  nature  need  not  any  publishing  or  procla- 
mation." But, '' the  law  of  nature  excepted  ;  it  belongeth 
to  the  essence  of  all  other  laws,  to  be  made  known  to 
every  man  that  shall  be  obliged  to  obey  them  *  *  ♦ 
For  the  will  of  another  cannot  be  understood,  but  by  his 
own  word  or  act,  or  by  conjecture  taken  from  his  scope 
and  purpose,  which,  in  the  person  of  the  commonwealth, 
is  to  be  supj)Osed  always  consonant  to  equity  and  reason. "^ 

''  The  interpretation  of  the  law  of  nature  is  the  sen- 
tence of  the  judge  constituted  by  the  sovereign  authority 
to  hear  and  determine  such  controversies  as  depend  there- 
on, and  consisteth  in  the  application  of  the  law  to  the 
present  case.  For,  in  the  act  of  judicature  the  judge 
doth  no  more  but  consider  whether  the  demand  of  the 
party  be  consonant  to  natural  reason  and  equity  ;  and 
the  sentence  he  giveth  is,  therefore,  the  interpretation  of 
the  law  of  nature ;  which  interpretation  ia  authentic,  be- 
cause he  giveth  it  by  authority  of  the  sovereign,  whereby 
it  becomes  the  sovereign's  sentence,  which  is  law  for  that 
time  for  the  parties  pleading.  "'^ 

lid.  124. 
21d-  126. 
8Id.  128. 


20 

"  But,  because  there  is  no  judge,  subordinate  nor  sov- 
ereign, but  may  err  in  a  judgment  of  equity,  if,  afterwards, 
in  another  like  case,  he  finds  it  more  consonant  to  equity  to 
give  a  contrary  sentence,  he  is  obliged  to  do  it.  No  man's 
error  becomes  his  own  law,  nor  obliges  him  to  persist  in 
it.  Neither,  for  the  same  reason,  becomes  it  a  law  to 
other  judges,  though  sworn  to  follow  it.  For,  though  a 
wrong  sentence  given  by  authority  of  the  sovereign,  if 
he  know  and  allow  it,  in  such  laws  as  are  mutable,  be  a 
constitution  of  a  new  law  in  cases  in  which  every  little 
circumstance  is  the  same,  yet  in  laws  immutable,  such  as 
are  the  laws  of  nature,  they  are  not  laws  to  the  same,  or 
other  judges,  in  like  cases  forever  after.  Princes  succeed 
one  another;  and  one  judge  passeth,  another  cometh  ; 
nay,  heaven  and  earth  shall  pass  ;  but  not  one  tittle  of  the 
law  of  nature  shall  pass,  for  it  is  the  eternal  law  of  God. 
Therefore,  all  the  sentences  of  precedent  judges  that  have 
ever  been  cannot,  all  together,  make  a  law  contrary  to 
natural  equity;  nor  any  example  of  former  judges  can 
warrant  an  unreasonable  sentence,  or  discharge  the  pres- 
ent judge  of  studying  what  is  equity,  in  the  case  he  isUa 
judge,  from  the  principles  of  his  own  natural  reason."^ 

lid.  128,  129 


CHAPTER  III. 

REVIEW  OF  HOBBES'  THEORY. 

§  3.  The  several  points  of  Hobbes'  argument,  on  the 
theory  of  the  State,  are  summed  up  in  the  following  prop- 
ositions : 

(1)  "  That  the  condition  of  mere  nature,  that  is  to 
say  of  absolute  liberty,  such  as  is  theirs  that  neither  are 
sovereigns  nor  subjects,  is  anarchy  and  the  condition  of 
war." 

(2)  "  That  the  precepts  by  which  men  are  guided  to 
avoid  that  condition  are  the  laws  of  nature.'' 

(3)  "  That  a  commonwealth  without  sovereign  power 
is  but  a  word  without  substance,  and  cannot  stand ; "  and, 

(4)  "  That  subjects  owe  to  sovereigns  simple  obedi- 
ence."^ 

To  these  propositions,  taken  in  their  ordinary  and 
proper  sense,  but  little  objection  can  be  made  ;  but  they 
are  not  the  conclusions  which  Hobbes  set  out  to  prove, 
and  which  he  would  have  us  believe.  They  present, 
therefore,  as  will  be  seen,  a  clear  case  of  irrelevant  con- 
clusion, or  ignoratio  elenchi. 

Thus,  the  first  proposition,  slightly  qualified,  may  be 
taken  as  substantially  correct,  but  it  cannot  be  accepted 
as  a  necessary  consequence  from  principles  of  human  na- 
ture ;  nor  can  the  argument  upon  which  it  is  rested  by 
Hobbes,  namely,  that  man  is  incapable  of  any  other  mo- 
tive than  a  regard  to  his  own  interest,  be  admitted.  For 
a  regard  to  the  just  claims,  and  even  the  welfare  of  others, 
or,  in  other  words,  justice  and  benevolence,  or  love, 
though  less  strong,  are  as  clearly  principles  of  human 
nature  as  selfishness.  All  that  can  be  admitted  on  this 
point  is,  that  with  men  in  general  the  last  is  the  predom- 
inating motive,  and,    with  a  great  many,   overrides  all 

iLev.  162.  To  the  last  clause,  /.  e.,  that  "subjects  owe  to  sovereigns 
simple  obedience,''  is  added,  in  the  original,  the  qualification,  "in  all 
things  wherein  their  obedience  is  not  repugnant  to  the  laws  of  God  " ;  but 
I  have  omitted  this,  as  being  one  of  the  cases  to  which  I  have  referred, 
where  Hobbes  says  what  he  obviously  does  not  mean.  For  the  pas- 
sage is  immediately  followed  by  an  argument  to  show  that  there  are  no 
cases  in  which  the  law  of  God  justifies  disobedience  to  the  sovereign. 
(Id.  166,167.) 
3 


22 

others.  Hence,  taking  men  as  we  know  them,  the  want 
of  government  must  result  in  a  state  of  conflict,  which 
may  very  fairly  be  described  as  a  state  of  actual,  or  ever 
impending  war  ;  and  historically  this  conclusion,  though 
in  degrees  varying  with  the  grade  of  civilization,  is  fully 
verified.  The  proposition  may  therefore  be  assumed,  not 
as  necessarily  true,  but  as  an  empirical  generalization 
from  past  experience ;  and  in  this  form  it  is  a  sufficient 
support  for  what  Hobbes  calls  his  first  and  second  laws 
of  nature  ;  namely,  that  men  should  seek  peace,  and  to 
that  end  subject  themselves  to  government ;  propositions 
indeed  that  few  dispute. 

The  third  proposition,  properly  construed,  is  also  obvi- 
ously true,  and  is  indeed  involved  in  the  preceding.  For 
sovereign  power,  in  its  proper  sense,  is  but  the  power  of 
the  government,  whether  it  be  greater  or  less  ;  and  the 
latter,  therefore,  cannot  exist  without  the  former.  But 
this  is  far  from  being  all  of  Hobbes'  meaning.  For,  in 
his  view,  sovereign  power  is  unlimited  or  absolute,  and  is 
also  indivisible  ;  and  these  are,  therefore,  the  conclusions 
intended. 

With  regard  to  the  first  of  these,  it  is  sufficiently  man- 
ifest that  the  power  of  government  must  be  great  ;  and 
we  may  even  say  with  our  author,  Non  est  super  terram 
potestas  quoi  comparetur  ei ;  but  that  it  is,  or  should  be, 
either  unlimited  or  irresponsible,  or  that  it  should  be  any 
greater,  within  the  limits  of  our  power  to  restrict  it,  than 
necessary  for  the  efficient  performance  of  its  functions, 
does  not  follow  from  the  premises  ;  nor  is  there  anything 
in  the  argument  tending  to  establish  such  a  conclusion. 

With  regard  to  the  proposition  that  the  sovereign  power 
is  indivisible,  this  necessarily  follows,  if  it  be  admitted 
that  it  is  unlimited.  For,  as  is  well  argued  by  Hobbes, 
every  division  of  the  sovereignty  necessarily  impairs  or 
diminishes  it,  or,  in  other  words,  limits  it.  For,  leaving 
out  of  view  the  convenient  fiction  which  regards  the  sov- 
ereign as  one  person,  or,  in  other  words,  as  a  corporation 
or  body  politic,  it  is  obvious  that  in  complex  or  constitu- 
tional governments  the  power  of  every  officer  or  depart- 
ment of  the  government  is  limited  by  that  of  others  ;  and 
hence  the  notion  of  the  divisibility  of  the  sovereign  power 
is  inconsistent  with  the  proposition  that  it  is  absolute.  But 
this  should  be  taken  as  a  reductio  ad  absurdum^  rather 
than  as  proof  of  the  doctrine  of  absolute  sovereignty. 
For,  in  fact,  history  abounds  with  examples  of  the  actual 


23 

division  of  the  sovereign  power  ;  as,  for  instance,  in  the 
past,  the  English  and  the  Roman  constitutions ;  and,  in 
the  present,  our  own  constitutions,  state  and  federal. 

With  regard  to  the  fourth  and  last  proposition,  namely, 
that  subjects  owe  to  sovereigns  simple  obedience,  this,  if 
it  be  construed  according  to  Hobbes'  own  definitions,  may 
be  readily  admitted.  For,  according  to  the  argument 
urged  in  support  of  it,  duty  is  but  the  fear  of  evil  conse- 
quences to  be  inflicted  by  the  sovereign  for  disobedience, 
and  it  must  therefore  be  admitted  that,  precisely  to  the 
extent  there  is  ground  for  such  fear,  the  duty,  ex  vi  termini, 
must  exist.  Nor  is  anything  added  to  the  proposition  by 
the  supposition  of  a  covenant  upon  the  part  of  the  sub- 
ject ;  for  covenants  themselves  are  binding  only  so  far  as 
evil  consequences  to  the  individual  are  to  be  apprehended 
from  their  violation  ;  and  "  justice,  that  is  to  say,  not 
keeping  of  covenants,  is"  itself  but  "  a  rule  of  reason  by 
which  we  are  forbidden  to  do  anything  destructive  to  our 
life.'' 

But  here  Hobbes  is  inconsistent;  for  obviously  he  in- 
tends us  to  understand  tiie  proposition  as  asserting  the 
existence  of  such  duty  upon  the  subject,  in  the  sense  in 
which  men  commonly  use  the  term.  But  thus  construed 
the  proposition  cannot,  under  his  theory,  be  admitted  ; 
for  one  of  his  fundamental  postulates  is  that  there  is  no 
such  thing  as  duty  in  this  sense.  Hence,  here,  the  prin- 
cipal object  of  Hobbes  fails, — which  was  to  inculcate,  as 
it  were,  a  religious  reverence  for  "  that  Mortal  God,"  Le- 
viathan, "  to  which  we  owe  *  *  *  our  peace  and  de- 
fense." For  his  conclusion,  construed  according  to  his 
own  theory,  and  rendered  into  plain  language,  is  merely 
that  men  will  generally  find  it  to  their  interest  to  obey  the 
Sovereign.  Hence,  according  to  his  theory,  the  condition 
of  man  is  not  essentially  altered  by  the  institution  of  gov- 
ernment. No  man  is  under  any  obligation  to  obey  the 
government  any  further  than  his  own  interest,  as  under- 
stood by  him,  may  demand  ;  but  every  man  still  *'  has  a 
right  to  everything;  even  to  one  another's  body,"  so  far 
as  the  right  can  be  exercised  with  impunity.  He  may 
rightly  defraud  and  rob  his  neighbor,  and  secretly  disobey 
Leviathan  himself,  provided  he  may  think  it  conducive  to 
his  interest  to  do  so ;  for  his  right  '*  of  doing  everything, 
which  in  his  own  judgment  and  reason  he  shall  conceive 
to  be  the  aptest  means  thereto,"  is  modified  merely  by  the 
fear  of  hurt  from  Leviathan.    Hence,  on  Hobbes'  theory, 


24 

the  natural  state  of  war  would  still  continue,  modified 
merely  by  fear  of  the  sovereign ;  from  which  would  re- 
•fiult  merely  a  change  of  the  weapons  commonly  used, 
namely,  from  open  force  to  cunning,  and  secret  fraud. 

It  is,  therefore,  obvious  that  Hobbes'  argument  is  in- 
conclusive, and  with  this  we  might  dismiss  it;  but  there 
is  a  certain  element  of  error  underlying  the  whole  sub- 
ject, consisting  in  the  ambiguity  of  the  term  power  or  sov- 
ereign  p)ower^  which,  as  we  shall  see,  has  misled  Austin 
find  later  English  writers,  and  from  which  Hobbes  him- 
self has  not  altogether  escaped ;  and  which  must  there- 
fore be  explained. 

The  term  power^  in  its  strict  and  proper  sense,  denotes 
might,  or  actual  power.  It  is  also  commonly  used  to  de- 
note rightful  power  or  right,  or,  in  other  words,  the  power 
which,  according  to  right,  one  ought  to  have ;  as  when 
we  say  that  the  owner  of  property  has  the  power  to  dis- 
pose of  it,  or  that  the  child  is  subject  to  the  power  of  the 
parent.  In  this  sense  Puffendorf  uses  the  term  when  he 
says,  "power  is  that  by  which  a  man  is  enabled  to  do  a 
thing  lawfully  "  ;^  and  Rutherford,  when  he  says,  "  Civil 
power  is  in  its  nature  a  limited  power"  ;2  or  when  he 
says,  *'  Right  and  moral  power  are  expressions  of  like  im- 
port" ;^  and  Leibnitz,  when  he  says  that  right  is  moral 
power,  and  obligation,  moral  necessity."* 

Hence,  the  proposition  that  the  power  of  the  sovereign 
is  unlimited,  may  mean  either  that  it  has  unlimited  actual 
power,  which  is,  in  effect,  to  say  that  its  power  is  unsus- 
ceptible of  actual  limitation,  (for  otherwise  the  proposi- 
tion would  not  be  universally  true,)  or  that  it  has  an  un- 
limited right  to  dispose  of  the  lives  and  fortunes  of  its 
-subjects. 

Hobbes,  in  the  original  statement  of  the  problem  to  be 
investigated,  does  not  fall  into  the  error  of  confounding 
:the8e  two  meanings  of  the  term.  For  the  problem  as 
stated  by  him  is  to  determine  "  what  are  the  '  rights'  and 
^just'  power,  or  authority  of  a  sovereign."^  And  this 
obviously  is  the  only  sense  in  which  the  question  is  worthy 
of  consideration.     For,  whether  the  actual  power  of  gov- 

iBk.  l,Ch.  ],Sec.  19. 

2  2  Inst,  of  Nat.  Law,  393. 

«Iii8t.  of  Nat.  Law,  B.  1,  C.  1,  Sec.  3. 

4"  Est  autem  jus  quasdam  potentia  moralis,  et  obligatio,  necessitas  mo- 
Tulis.  Moralem  autem  intelligo,  quse  upud  virum  honum  SRquipollet  naturali ; 
nam  ut  prxdare  jurisconsultus  Romanus  ait,  qux  contra  bonos  mores  sunt 
•ea  nee  facer  e  nee  posse  credendum  est."    Opera  4,  3,  294. 

-SLev.,  Introduction. 


26    S^zirS^^ 


ernmentis  limited  or  unlimited  is  purely  a  historical  ques- 
tion, which  can  be  answered  only  in  one  way,  namely,  by 
saying  that,  in  fact,  it  always  has  been,  in  various  degrees, 
limited.  Hobbes'  proposition  is,  therefore,  to  be  under- 
stood as  asserting  the  unlimited  and  irresponsible  right 
or  just  power  of  the  sovereign  over  its  subjects  ;  and  it 
becomes  essential,  therefore,  in  order  to  understand  its 
significance,  to  bear  in  mind  what  he  means  by  the  terms 
inght  SLiid  just.  For  these,  as  we  have  seen,  are  used  by 
him  in  a  sense  different  from  that  in  which  they  are  com- 
monly understood,  and  the  proposition  in  fact  means  some- 
thing quite  other  than  what  it  appears  to  express. 

As  used  by  Hobbes,  the  term  right  signifies  merely  the 
absence  of  restraint  imposed  by  law.  The  proposition^ 
therefore,  merely  asserts  that  the  liberty  or  power  of  a 
sovereign  is  not  limited  by  law,  regarded  as  the  expressed 
will  of  the  sovereign,  (or  lex);  which  is  but  to  assert  the 
truism  equally  applicable  to  the  sovereign  and  to  others, 
that  a  man's  liberty  or  power  is  not  limited  by  his  own 
will. 

The  same  result  also  follows  if  we  consider  the  term 
just^  as  used  in  the  phrase,  "just  authority."  ''The 
definition  of  justice,"  he  says,  "is  no  other  than  the  not 
performance  of  contract,  and  whatsoever  is  not  unjust  is 
just."  The  authority  of  the  sovereign  is  not  unjust,  be- 
cause it  is  not  limited  by  covenant ;  and,  therefore,  it  is 
just.  The  whole  proposition,  therefore,  simply  means  that 
the  sovereign  power  is  not  limited,  either  by  positive 
enactment,  or  by  contract;  for,  as  we  have  seen,  accord- 
ing to  Hobbes'  theory,  the  covenant  by  which  the  sov- 
ereign is  created  is  exclusively  between  subjects,  and 
the  sovereign  is  not  a  party  to  it;  and,  if  the  sovereign 
make  a  covenant  with  a  subject,  it  is  void,  for  want  of  a 
superior  power  to  enforce  it. 

But  in  the  last  proposition  Hobbes  forgets  the  reasoning 
upon  which  the  proposition, that  covenants  between  parties 
in  a  state  of  nature  are  void,  was  established  by  him ;  for  the 
argument  is  merely  that  no  man  in  a  state  of  nature  is  bound 
by  his  covenant  because  he  has  no  guaranty  of  perform- 
ance by  the  other  party.  But  this  can  have  no  applica- 
tion to  the  sovereign  who  has,  in  his  own  power,  full 
guaranty  of  the  performance  of  contracts  made  with  his 
subjects. 

When,  therefore,  Hobbes  speaks  of  the  right  of  the 
sovereign,  he  means  something  quite  different  from  what 


26 

is  usually  meant  by  the  term  ;  and,  having  due  regard  to 
the  propriety  of  language,  it  is  clear  that  the  so-called 
right  of  the  sovereign  is  not,  in  fact,  a  right,  but  a  mere 
unbridled  power. 

From  what  has  been  said,  the  fundamental  defect  of 
Hobbes'  theory  is  clearly  apparent.  It  rests  upon  the 
negative  assumption — the  old  thesis  of  the  sophists — 
that,  independently  of  human  institution,  there  are  no 
such  things  as  moral  distinctions,  no  right  and  wrong, 
no  just  and  unjust,  no  rights  or  obligations;  and  this 
will  be  found  to  be  the  common  fundamental  assumption 
of  Bentham  and  Austin,  and  the  later  writers  of  their 
school,  and  to  be,  in  fact,  the  foundation  upon  which  the 
modern  English  theory  of  the  state  rests.  Whether  this 
assumption  be  true  or  false,  it  is,  in  fact,  the  fundamen- 
tal problem  of  political  philosophy,  and  will  hereafter  be 
fully  considered. 

§  2.  One  of  the  most  valuable  features  of  Hobbes' 
theory  is  what  may  be  called  his  jural  method,  which 
consists  in  the  view  taken  of  the  fundamental  problem  or 
problems  which  it  is  the  aim  of  jurisprudence  to  solve  ; 
or,  in  other  words,  of  the  scope  of  the  science.^ 

In  Hobbes'  view,  as  we  have  seen,  a  right  consists  in 
liberty  to  act,  and  rights  in  the  aggregate,  or  rights  in 
the  general  liberty  which  a  man  has  to  act  freely. 

But  the  term  riglit  contains  in  its  signification  another 
element,  namely,  the  quality  of  rightness;  and  hence,  the 
liberty  which  constitutes  the  right  is  not  to  be  under- 
stood as  actual  liberty,  but  as  just  or  rightful,  or,  as  it 
may  be  more  appropriately  termed,  J«r«/  liberty. 

In  this  connection  the  term  'power  is  so  far  synonymous 
with  liberty  that  it  may  be  used  indifferently  in  the  defini- 
tion. For  these  two  terms  differ  merely  as  the  words 
"may"  and  '*  can,"  and  therefore  combine  in  their  signi- 
fication the  same  essential  ideas,  namely,  absence  of  re- 
straint and  ability  to  act;  and  while  each  denotes  one  of 
these  notions,  it  also  connotes  the  other.  A  right,  there- 
fore, may  be  defined  as  consisting  in  the  jural  liberty  or 
power  to  act,  (^facultas  agendi)  in  a  particular  case  or 
class  of  cases.  Rights,  therefore,  are  but  particular 
parts  or  divisions  of  the  general  liberty  to  which  a  man 
is  rightfully  entitled,  and  in  the  aggregate  constitute  such 

II  have  elsewhere  attempted  to  explain  the  nature  and  scope  of  jur- 
isprudence (Right  and  Law,  Ch.  v.,  Callaghan  &  Co.,  Chicago);  and  as 
the  view  there  taken  is  substantially  that  of  Hobbes,  I  here  uaake  use 
of  it,  in  an  abbreviated  form,  in  explaining  his  theory. 


27 

liberty;  and  the  ultimate  problem  of  jurisprudence,  re- 
garded as  the  science  of  rights,  is  to  determine  the  extent 
of  the  rightful  or  jural  liberty  of  the  individual. 

But,  obviously,  such  liberty  exists  in  every  case  in 
which  one  may  not  rightfully  be  restrained  by  other  in- 
dividuals or  by  the  state ;  and  as,  in  general,  this  liberty 
exists,  and  as  there  is  always  a  presumption  in  its  favor, 
the  immediate  problem  is  to  determine  the  exceptional 
cases  in  which  it  may  be  rightfully  restrained. 

But  the  rightful  power  or  liberty  to  restrain  the  free 
action  of  another  where  it  exists,  like  the  power  or  liberty 
to  do  any  other  act,  is,  ex  vi  termini,  a  right ;  hence,  it 
follows  that  the  liberty  of  the  individual  is  limited,  and 
limited  only,  by  the  rights  of  other  individuals,  or  of  the 
state. 

It  is  precisely  thus  that  the  problem  was  conceived  by 
Hobbes ;  and  accordingly,  as  we  have  seen,  the  question 
to  which  his  attention  was  chiefly  directed  was  to  deter- 
mine "  what  are  the  riglits  and  just  p^icer  or  authority 
of  a  sovereign  "  ;  but,  as  he  did  not  conceive  of  the  exist 
tence  of  moral  distinctions  independently  of  human  insti- 
tution, he  lacked  one  essential  element  for  the  successful 
solution  of  the  problem. 

Hence,  his  paradoxical  conclusion  that  in  the  state  of 
nature  every  man  has  a  right  to  everything,  even  to  his 
neighbor's  person  ;  which,  if  propriety  of  language  be  re- 
garded, is  obviously  absurd.  For  the  term,  right,  as  uni- 
versally conceived,  implies  an  exclusive  liberty  ;  and  it  is, 
therefore,  as  impossible  for  two  rights  to  conflict,  as  for 
two  bodies  to  occupy  the  same  space  at  the  same  time. 

Hence,  also,  he  is  forced  to  conclude  that  in  a  state  of 
nature  property  could  not  exist ;  though  clearly  a  man  is 
born  at  least  with  a  property  in  his  own  person  ;  and  the 
natural  right  of  self-ownership  is  indisputable.  And  from 
this,  as  has  been  shown,  with  admirable  acuteness  and 
penetration  by  Herbert  Spencer,  all  other  rights  can  be 
logically  derived.  Naturally,  therefore,  he  altogether 
failed  to  establish  his  theory,  and  in  order  to  make  an  ap- 
parent solution  was  compelled  to  invent  a  fictitious  social 
compact,  and  a  fictitious  mortal  God. 

Nevertheless,  his  conception  of  the  fundamental  prob- 
lem involved,  and  of  the  mode  of  dealing  with  it,  is  pro- 
found, original,  and  true  ;  and  his  failure  resulted  simply 
from  the  omission  of  an  essential  element  in  the  problem  ; 


28 

which,  as  will  be  shown,  if  taken  into  account,  renders  it 
susceptible  of  an  easy  solution.^ 

§  3.  Hobbes'  theory  of  the  law  is  based  upon  his 
conception  of  the  nature  of  rights,  and  his  resulting  con- 
ception of  the  method  of  jurisprudence,  as  explained  in 
the  last  section.  According  to  this  view,  a  man's  liberty 
or  right  prior  to  the  institution  of  government  is  un- 
limited, but  after  the  institution  of  government  is  limited 
by  law.  This  limitation,  however,  does  not  in  any  way 
alter  the  essential  nature  of  the  right.  It  still  consists  in 
the  natural  liberty  which  every  man  has,  within  the  limits 
imposed  by  the  rights  of  other  individuals,  or  the  state, 
to  govern  his  own  life  and  actions  according  to  his  own 
reason.  His  liberty  is  less  extended,  but  within  its  ex- 
tent it  is  the  same  liberty  that  in  a  state  of  nature  would 
constitute  his  natural  right.  Hence,  the  rights  of  a  man 
in  a  state  of  political  society,  being  merely  the  remainder 
of  his  natural  right  still  left  to  him  by  the  law,  are  of 
natural  origin  ;  or,  in  other  words,  are  natural  rights. 
Nor  can  the  sovereign  himself  create  a  right  of  any  other 
kind,  for  whatever  right  he  may  confer  upon  a  subject 
has  its  virtue  and  force  from  the  right  conferred  upon  the 
sovereign  by  the  law  of  nature,  and  is,  therefore,  as  much 
a  natural  right  as  the  right  of  a  man  to  property,  sold  or 
given  him  by  another. 

But  rights  constitute  a  principal  topic  of  the  law,  and 
hence,  the  principles  by  which  rights  are  determined  con- 
stitute part  of  the  law  of  the  land,  and  as  such  are  ad- 
ministered by  the  judges.  Hence,  as  asserted  by  Hobbes, 
"  the  law  of  nature '' — which  is  but  another  name  for 
natural  right — "  is  part  of  the  civil  law  m  all  common- 
wealths of  the  world."  Thus  it  will  be  perceived  Hobbes' 
conclusions  are  directly  the  opposite  of  the  two  principal 
tenets  of  the  modern  English  jurists,  namely,  that  in  fact 
there  are  no  natural  rights,  and  that  the  law  of  nature, 
or  natural  right,  is  not  part  of  the  law. 

The  proposition  that  the  law  of  nature,  or  natural  right, 
is  part  of  the  law  of  the  land,  is  logically  deduced  by 
Hobbes  from  his  premises,  and  presents  his  deliberate  and 
controlling  opinion  upon  the  subject.  But,  as  we  have 
observed,  it  is  in  conflict  with  the  definition  of  the  law, 

iThe  method  of  Hobbes  is  in  fact  identical  with  that  of  Herbert  Spen- 
cer, and  also  with  that  of  Kant  ;  by  whom,  indeed  Mr.  Spencer  admits 
that  he  was  anticipated,  as  Kant  himself  was  by  Hobbes  ;  though  the 
conception  was  undoubtedly  original  with  Mr.  Spencer,  who  was  unac- 
quainted with  the  views  of  his  predecessors. 


29 

as  consisting  of  the  commands  of  the  sovereign;  and  the 
arguments  used  by  him  to  reconcile  the  two  positions  are 
calculated  to  obscure  his  real  view.  These  arguments 
are,  substantially,  that  on  the  institution  of  government 
the  law  of  nature  becomes  part  of  the  civil  law,  as  being 
then  the  command  of  the  sovereign,  who  is  always  to  be 
supposed  to  intend  what  is  consonant  with  equity  and  rea- 
son. But,  as  we  have  seen,  he  elsewhere  asserts,  and  with 
great  force,  that  it  is  not  in  the  power  of  the  sovereign  to 
abrogate  the  laws  of  nature ;  though,  of  course,  he  may 
violate  them.^  Obviously, therefore,  the  argument  is  based 
upon  what  is  called  a  legal  fiction  ;  which  may  be  de- 
scribed as  an  assumption  recognized  to  be  in  fact  untrue, 
made  for  the  purpose  of  apparently  reconciling  conflict- 
ing positions. 

There  is  also  another  argument  of  the  same  kind,  by 
which  our  author  undertakes  to  explain  the  fact  that  cus- 
tom is  part  of  the  law,  and  which  is  as  follows  : 

'*  When  long  use  obtaineth  the  authority  of  a  law,  it 
is  not  the  length  of  time  that  maketh  the  authority,  but 
the  will  of  the  Sovereign  signified  by  his  silence;  for 
silence  is  sometimes  an  argument  of  consent,  and  it  is  no 
longer  a  law  than  the  Sovereign  shall  consent  therein.*^ 

But  here  Hobbes  trips  in  his  logic,  and  is  guilty  of  the 
fallacy  of  an  undistributed  middle.  His  conclusion,  ob- 
viously, should  be  that  sometimes  custom  derives  its  valid- 
ity from  the  will  of  the  Sovereign,  signified  by  his  si- 
lence ;  which  is  obviously  the  case  where  the  Sovereign, 
knowing  of  the  custom,  and  deliberately  considering  it, 
permits  it  to  continue,  and  not  otherwise ;  for  the  maxim, 
**  qui  tacet  consentire  mdetur,'"'  can  have  no  application 
to  the  silence  of  a  person  who  knows  nothing  of  the  matter. 
But,  obviously,  this  argument  also  was  invented  merely 
for  the  purpose  of  logically  reconciling  an  obvious  fact 
with  his  definition  of  the  law,  as  being  a  command  of  the 
Sovereign.  Otherwise,  it  was  unnecessary  ;  for  custom 
is  clearly  part  of  the  law  on  obvious  principles  of  natural 
reason. 

But  these  peculiar  views  of  Hobbes'  do  not  constitute 
an  essential  part  of  his  theory  of  the  law  ;  which,  indeed, 
will  be  better  expressed  if  they  be  stricken  out, — to  use 
an  expression  of  the  lawyers, — as  surj^lusage.  Thus 
amended,  his  views  may  be  accepted  as  a  true  and  accu- 
rate description  of  the  law,  and  as  one  of  the  most  valu- 
1  Ante,  page  20.  2  j^y.  ,124.  ,    >^ 

uhivbesity; 


feffoiii^ 


30 

able  contributions  that  have  been  made  to  jural  science  ; 
and  also  as  one  which,  in  fact,  constitutes  a  great  step 
towards  the  successful  performance  of  the  task  to  which, 
in  the  opinion  of  Leibnitz,  he  alone,  or  Grotius,  was  equal, 
— namely,  the  task  of  "  reducing  morals  and  jurispru- 
dence to  a  science."  But  unfortunately,  as  we  proceed, 
we  shall  have  occasion  to  verify,  in  his  case,  the  sad  ex- 
pression of  Mark  Anthony : 

"  The  evil  that  men  do  lives  after  them, 
The  good  is  oft  interred  with  their  bones." 


CHAPTER  IV. 

OF  THE  THEORY  OF  BENTHAM  AND  AUSTIN.^ 

§  1.  Benthani  and  Austin  agree  substantially  with 
Hobbes  in  assuming,  as  a  first  principle,  the  proposition 
that  men  are  not  susceptible  of  any  other  than  merely 
self-regarding  motives,  and  also  in  the  conclusion  that  the 
power  of  the  sovereign  is  necessarily  absolute.  Hence, 
their  theory  on  this  branch  of  the  subject  may  be  regarded 
as  substantially  a  reproduction  of  his,  and  it  will  be  suffi- 
cient for  our  purpose  merely  to  explain  the  points  of  dif- 
ference. 

The  first  principle  of  Bentham  differs  in  form  of  ex- 
pression from  that  of  Hobbes,  and,  perhaps,  regarded 
merely  as  a  psychological  theory,  may  be  distinguished 
from  it,  but  in  its  bearing  on  the  theory  of  the  state,  its 
effect  is  the  same.     Briefly,  it  is  as  follows  '? 

''  The  will  cannot  be  influenced  except  by  motives  ;  but, 
when  we  speak  of  motives  we  speak  of  pleasures  and 
pains.  *****  Nature  has  placed  men  under 
the  governance  of  two  sovereign  masters,  pain  and  pleas- 
ure. ^  •5«-  ^  The  principle  of  utility  subjects  every- 
thing to  these  two  motives." 

Utility  is  defined  as  "  the  property  or  tendency  of  a 
thing  to  prevent  some  evil  or  to  procure  some  good.  Evil 
is  pain,  or  the  cause  of  pain.  Good  is  pleasure,  or  the 
cause  of  pleasure."     *     -J^-     ^ 

**  He  who  adopts  the  principle  of  utiHty  esteems  virtue 
to  be  good  only  on  account  of  the  pleasures  which  result 
from  it ;  he  regards  vice  as  being  an  evil  only  on  account 
of  the  pains  it  produces."  "  Virtue  is  a  sacrifice  of  a  less 
interest  to  a  greater,  of  a  momentary  to  a  durable,  of  a 
doubtful  to  a  certain  interest.  Every  idea  of  virtue  that 
is  not  derived  from  this  notion  is  as  obscure  in  conception 
as  it  is  precarious  in  motive.     *     *     *     Sic  prcssentibus 

iThe  subject  of  this  chapter  has  been  treated  in  the  work  already 
cited,  "  Right  and  Law  ' ' ;  but,  as  the  matter  is  essential  to  the  argument 
here,  repetition  to  some  extent  is  unavoidable. 

^he  citations,  for  the  sake  of  brevity,  are  confined  to  Benthan's 
'•  Theory  of  Legislation,"  London,  Triibner  &  Co.,  1871,  etc., and,  unless 
otherwise  noted,  will  be  found  in  the  first  chapter. 


32 

utare  voluptatihis  ut  futuris  non  iioceas.  So  use  pres- 
ent pleasures  as  not  to  lessen  those  which  are  to  come."* 

Obviously,  so  far  as  the  argument  is  concerned,  the 
psychological  principles  of  Bentham  are  identical  with 
those  of  Hobbes,  and  the  observations  made  as  to  the 
sufficiency  of  Hobbes'  argument  are  equally  applicable 
here ;  that  is  to  say,  it  is  clear,  should  the  principle 
be  assumed,  that  the  necessity  of  government  w^ould  be 
even  more  apparent  than,  in  view  of  the  actual  consti- 
tution of  human  nature,  it  in  fact  is  ;  but  it  would  also 
follow  that  there  would  be  no  duty  or  obligation  upon  any 
one,  any  further  than  he  might  be  impelled  by  the  fear 
of  punishment,  to  observe  the  will  of  the  government  ;  or 
upon  the  part  of  the  government  to  regard  the  interest  or 
welfare  of  his  subjects  ;  or,  upon  any  man  towards  his 
neighbor,  either  to  benefit  him,  or  to  refrain  from  injur- 
ing him  ;  and  finally,  that  Hobbes'  state  of  never-ending 
war  would  still  exist,  with  the  difference  only  that,  to  the 
warfare  of  every  one  against  his  neighbor,  would  be 
added  the  warfare  of  Leviathan  against  him,  and  of  him 
against  Leviathan  ;  and  that  fraud  would  thus,  in  gen- 
eral, be  substituted  for  force.  This  indeed  is,  unfortu- 
nately, a  substantially  fair,  though  somewhat  strongly  ex- 
pressed, description  of  the  actual  condition  of  modern 
civilization  ;  but  nothing  surely  could  have  a  stronger 
tendency  to  aggravate  it  than  the  general  acceptance  of  a 
theory  that  in  effect  asserts,  not  only  the  morality,  but  the 
necessity  of  such  a  condition. 

From  such  premises  it  is  obviously  impossible  to  derive 
the  notion  of  duty,  either  to  the  state  or  to  our  neighbors; 
and  hence,  as  we  have  observed,  Hobbes  was  compelled 
to  invent  the  fiction  of  a  social  compact,  and  thus,  by  de- 
liberate self-delusion,  to  reach  the  conclusion  at  which  he 

iln  the  above  and  numerous  other  passages,  Bentham  leaves  no  room 
for  mistake  as  to  his  meaning  ;  and  it  is  one  of  the  curiosities  of  litera- 
ture that  Mr.  Mill  should  charge  Dr.  Whewell  (whose  works  always 
seem  to  have  excited  in  him  a  most  unphilosophical  animosity)  with 
misrepresentation,  for  attributing  to  Bentham  the  proposition  that 
"  the  test  of  morality  is  the  greatest  happiness  of  the  agent  himself." 
The  "  standard,"  Mr,  Mill  says,  "  is  not  tlie  agent's  own  greatest  hap- 
piness, but  the  greatest  amount  of  happiness  altogether.'  "  Nor  did 
he  (Bentham)  ever  dream  of  defining  morality  to  be  the  self  interest  of 
the  agent."  (Dissertations  and  Discussions,  New  York,  Henry  Holt  & 
Co.,  1882,  Vol.  Ill,  pp.  315,  162.)  But  this,  if  language  is  capable  of  ex- 
pressing any  idea  unequivocally,  is  precisely  what  is  asserted  by  Ben- 
tham ;  and  accordingly  Mr.  Sedgwick  (Encyc.  Brit.,  Article,  "Ethics  "), 
after  remarking  that  "  a  supreme  and  unquestioning  self-devotion, 
in  which  all  personal  calculations  are  suppressed,"  is  a  distinguish- 
ing feature  of  Mill's  own  theory,  justly  observes  that  such  "a  phe- 
nomenon   *    »    *    in  Bentham's  view  is  not  even  possible." 


aimed.  But  Bentham,  while  justly  reprobating  this  arti- 
fice, adopts  a  method  hardly  less  reprehensible,  and,  by 
taking  advantage  of  the  ambiguity  of  the  term  utility, 
introduces  a  new  principle,  essentially  different  from  the 
one  first  assumed ;  namely,  the  principle  of  general  util- 
ity, which  is  that  the  welfare  or  interest  of  men  in  general, 
and  not  that  of  the  agent,  is  the  test  or  standard  of  right. 
But  this  principle,  though  perhaps  not  true,  at  least  as- 
serts the  reality  of  duty,  and  of  the  distinction  between 
right  and  wrong, — of  which  the  theory  of  private  or  indi- 
vidual utility  is  the  direct  negation ;  and  hence  the  two 
theories  are  essentially  distinct,  and, — except  upon  one 
hypothesis,  to  be  referred  to  hereafter, — irreconcilable. 

Hav^ing  thus  changed  his  premises,  Bentham  proceeds 
easily  enough  to  the  remaining  propositions  of  his  theory, 
viz:  that  "  the  public  good  ought  to  be  the  object  of  the 
legislator  ";  which,  as  an  abstract  proposition,  is  true 
enough,  but  is  open  to  the  objection  that,  according  to 
the  theory,  no  motive  can  be  conceived  why  the  legisla- 
tor should  govern  himself  accordingly ;  for,  even  if  the 
principle  of  general  utility  be  assumed,  the  theory  of 
Bentham  admits  of  no  possible  motive  to  secure  its  ob- 
servance, except  so  far  as  self-interest  may  be  effectual 
for  that  purpose.^ 

Austin's  theory  agrees  with  Bentham's,  except  that  he 
postulates  the  existence  of  a  God,  in  whose  will  is  to  be 
found  the  ultimate  standard  of  right ;  from  whose  known 
benevolence,  it  is  to  be  inferred  that  the  principle  of 
general  utility,  or  the  welfare  of  mankind,  is  enjoined ; 
and  from  whose  power,  and  the  consequent  fear  of  punish- 
ment, it  is  also  to  be  inferred  that  it  is  the  interest,  and 
therefore,  ex  vi  terniini,  the  duty  of  all  men  to  observe  his 
will.  In  this  way  the  inconsistency  between  the  theories 
of  indwidual  and  of  general  utility  is  reconciled.  But 
it  is  held  by  Austin  that  the  will  of  God  is  not  sufficient- 
ly known  to  us,  either  by  revelation,  or  by  the  principle 
of  general  utility, — ''  which,  he  says,  as  an  index  to  the 
divine  will,  is  obviously  insufficient," — to  serve  as  a  prac- 
tical standard  ;  and  that  the  will  of  the  government  must 
therefore  be  adopted  for  that  purpose.  Hence  he  con- 
cludes, with  Hobbes,  that  the  source  of  rights  and  obli- 

iThere  seems  to  be  no  doubt  that  Bentham,  in  confounding  general 
and  individual  utility,  was  himself  deceived  by  the  ambiguity  of  the 
term,  and  that  he  continued,  during  a  long  life,  to  be  unconscious  of 
his  error.  But  what  is  stranger  is  that  his  followers  generally,  includ- 
ing Mr.  Mill,  as  we  have  seen,  seem  to  participate  in  the  delusion. 


34 

gations,  and  the  paramount  standard  of  justice,  are  to  be 
found  in  the  Sovereign  Will.^ 

§  2.  The  theory  of  Bentham  and  Austin  does  not  rest 
upon  the  principle  of  utility,  but  upon  another  principle, 
namely,  the  definition  of  the  law  as  being  the  command  or 
expressed  will  of  the  sovereign  or  supreme  power  in  the 
state. 

The  theory,  in  other  words,  regards  all  law  as  merely 
te,  and  may,  therefore,  with  propriety,  be  called  the  legal 
theory  of  jurisprudence,  and  thus  distinguished  from  the 
jural  theory,  or  theory  that  regards  the  law  in  the  sense 
of  jus. 

The  definition,  however,  is  apparently  inconsistent  with 
the  fact  that  the  greater  part  of  the  law  is  not  of  statutory 
origin,  but  consists  largely  of  custom,  and  has  been 
developed  by  the  courts  in  the  administration  of  justice. 
To  meet  this  point,  Austin  is  compelled  to  assert  that 
judicial  decisions  are,  in  effect^  laws,  or  expressions  of  the 
will  of  the  sovereign,  through  the  judges  as  its  officers  ; 
and  that  in  the  development  of  the  law,  the  judges  in  fact 
perform  the  functions  of  legislators ;  and  that  custom 
does  not  in  fact  constitute  a  part  of  the  laic  until  it  has 
been  recognized  by  the  courts.  Thus  custom,  until  it 
enters  into  judicial  decisions,  is  not  law,  and  judicial 
decisions  in  their  essential  nature,  do  not  differ  from  stat- 
utes ;  and  hei.ce  all  parts  of  the  law  come  under  the  defi- 
nition, and  the  whole  law,  is  composed  of  statutes  merely. 

But,  as  we  have  observed,  the  principal  subject  with 
which  the  law  has  to  deal  is  ^'  rights  "  ;  and  the  principles 
by  which  these  are  determined,  or,  in  other  words,  the 
principles  observed  by  the  courts  in  determining  them,  con- 
stitute a  part  of  the  law,  and  indeed  nearly  the  whole  of 
the  law  of  private  right  {jus  iwivatum).  Hence,  if  the 
law  is  wholly  an  expression  of  the  will  of  the  state,  these 
principles  come  under  the  definition  of  laws  ;  and  rights, 
which  are  determined  by  them,  are  in  fact  determined  by 
the  Will  of  the  state,  and  are  mere  creatures  of  that  will. 

But,  under  the  term  right,  is  included  every  claim 
that  men  can  have  to  personal  liberty  or  security,  and  to 
the  acquisition  and  use  of  property,  to  the  enjoyment  of 
the  family  relations,  and  even  to  life  itself;  and  hence,  if 
rights  are  mere  creatures  of  the  sovereign  will,  the  power 
or  right  of  the  sovereign  over  the  property,  the  liberty^ 
and  even  the  lives  of  its  subjects  rnust  be  absolute  or 
unlimited. 

iJur.,  pp.  91,  ?4,  109,  112,  221. 


35 

An  apparently  similar,  but,  as  will  be  seen,  in  reality,  an 
essentially  different  proposition,  is  also  asserted  by  Au- 
stin, viz : 

'*  It  follows  from  the  essential  difference  of  a  positive 
law,  and  from  the  nature  of  sovereignty  and  independent 
political  society,  that  thejjower  of  a  monarch,  properly  so- 
called,  or  thejjoiver  of  a  sovereign  number  in  its  collect- 
ive and  sovereign  capacity,  is  incajmhle  of  legal  limita- 
tion, A  monarch  or  sovereign  number  bound  by  a  legal 
duty  were  subject  to  a  higher  or  superior  sovereign  ;  that 
ig  *  -Jt  *  were  sovereign,  and  not  sovereign.  Su- 
preme power  limited  hy i^ositive  law  is  aflat  contradic- 
tiou  in  terms y 

And  from  this  he  draws  another  and  quite  a  different 
inference,  viz:  That  ^^  every  free  government  is  legally 
despotic'^;  which  he  says  is  ''the  same  proposition 
dressed  in  different  phrase."  But  this  is  not  the  case. 
For  to  say  that  the  government  is  "  legally  despotic,"  is 
to  say  that  despotic  power  is  conferred  upon  it  by  law ; 
which  is  obviously  false,  and,  according  to  Austin's  the- 
ory, impossible. 

It  follows,  as  a  corollary  from  the  above  propositions, 
that  the  notion  of  natural  rights  is  a  mere  delusion,  and 
that  such  rights  can  have  no  existence.  For,  if  natural 
rights  do  exist  they  must  avail,  ex  vi  termini,  against  all 
men,  whether  vested  with  political  power,  or  mere  pri- 
vate individuals ;  and  the  power  of  the  sovereign  would 
thus  be  limited,  which  is  contrary  to  the  hypothesis. 

The  theory  also  involves  the  denial  of  moral  distinc- 
tions as  commonly  understood.  For  the  term  "  rights," 
in  its  ordinary  and  proper  sense,  connotes  the  quality  of 
rightness,  and  therefore  refers  to,  and  implies  some  stand- 
ard of  right  and  wrong  by  which  the  validity  of  rights  is 
to  be  determined.  To  assert,  therefore,  that  rights  rest 
for  their  existence  exclusively  upon  the  will  of  the  gov- 
ernment is  to  identify  that  will  with  the  standard  referred 
to,  and  to  assert  that  conformity  or  non-conformity  to  it, 
of  itself  constitutues  right  and  wrong;  which  is  in  effect 
to  deny  the  existence  of  any  natural  standard  ;  for  what- 
ever the  standard  of  right  may  be,  it  must  necessarily  be 
paramount,  to  and  exclusive  of  any  other. 

Indeed,  apart  from  this  consideration,  it  is  impossible  to 
conceive  of  any  ground  upon  which  the  principles  of  justice, 
or  those  principles  which  relate  to  rights,  can  be  denied, 
and  at  the  same  time  any  other  moral  principles  admitted  ; 


for  these,  of  all  moral  convictions,  are  the  most  clear  and 
definite,  and  apparently  the  most  certain  ;  and  it  would 
therefore  seem  that  they  must  constitute  the  last  strong- 
hold of  morality  to  be  surrendered,  and  that,  if  the  con- 
ception of  rights,  so  universal  and  profound,  is  a  delusion, 
a  fortiori  our  other  moral  convictions  must  be  so. 

Accordingly,  Hobbes,  as  we  have  seen,  expressly  asserts 
that  the  will  of  the  government  is  the  supreme  standard 
of  right ;  and  that  the  terms  **  right ''  and  "  wrong," 
"just"  and  *' unjust,"  signify  nothing  more  than  con- 
formity, or  non-conformity  to  its  will ;  and  Bentham  and 
Austin  in  effect  assert  the  same  proposition.  For  though 
they  hold  that  utility  constitutes  the  essence  of  right,  yet 
they  also  assert  that  it  is  too  uncertain  and  indefinite  to 
serve  as  a  practical  standard  ;  and  that  of  necessity,  there- 
fore, the  government  must  be  the  sole  and  supreme  judge 
of  what  utility  may  require. 

The  difference,  therefore,  is  only  in  the  manner  in 
which  they  arrive  at  the, same  conclusions, — Hobbes,  for 
that  purpose,  inventing  the  fiction  of  a  social  compact, 
and  Bentham  and  Austin  making  use  of  the  theory  of 
utility  ;  for  they  both  in  the  end  assert  that  the  will  of 
the  sovereign  is  the  supreme  rule,  and  that  the  obligation 
of  conforming  to  it  is  paramount  to  every  other. 

So  paradoxical,  however,  is  this,  and  the  conclusion 
as  to  the  non-existence  of  rights,  that  the  legists  generally, 
since  the  time  of  Bentham,  have  found  it  necessary,  ap- 
parently, to  recede  somewhat  from  these  extreme,  but  log- 
ical views  upon  the  subject,  or  at  least  to  explain  and 
modify  them  in  such  a  manner  as  to  be  less  shocking  to 
the  common  sense  of  ordinary  persons. 

Accordingly,  Austin  and  the  later  writers  of  his  school 
assert  a  distinction  between  legal  and  moral  rights,  and 
thereby  seem  to  admit  the  existence  of  natural  rights  of  a 
certain  kind.  But  they  are  careful  to  explain  and  to  in- 
sist that  such  rights  are  not  rights  in  a  proper  sense,  hut 
mere  moral  claims,  which  the  party  interested  is  not  at 
liberty  to  enforce,  and  which  all,  including  the  state,  are 
at  liberty  to  violate.  In  effect,  therefore,  they  assert  equal- 
ly with  Bentham  that  there  are  no  rights  hut  legal  rights, 
and  that  it  is  these  alone  which  the  courts  undertake  to 
enforce,  or  with  which  thejiiHst  is  in  any  way  concerned. 


CHAPTER  V. 

OF    THE    RECENT    ENGLISH    JURISTS. 

§  1.  The  theory  of  Austin  lias  never  been  received 
by  the  jurists  of  otlier  countries;  and,  indeed,  as  Sir 
Henry  Maine  remarks,  there  seem  to  be  "  no  signs  of  its 
being  known  on  the  continent  at  all."  But  in  England  it 
is  now  generally  accepted  ;  and,  indeed,  is  there  so  firmly 
established  as  to  have  j)ut  a  stop  almost  entirely  to  all 
independent  investigation  in  jural  science.  The  result  has 
been,  that  the  works  of  the  recent  English  jurists,  which  we 
are  about  to  examine,  will  be  found  in  the  main  to  consist 
of  mere  glosses  or  commentaries  on  the  views  of  Austin; 
and  the  value  of  this  literature  must  therefore  depend 
upon  two  considerations,  namely,  the  merit  of  Austin's 
work,  and  the  greater  or  less  success  with  which  it  has 
been  reproduced  by  the  writers  referred  to. 

The  writings  of  Austin  present  three  characteristic 
features,  by  which  the  merit  of  his  work  is  to  be  judged. 
These  are,  his  theory,  as  to  which,  as  this  work  is  almost 
wholly  devoted  to  its  consideration,  nothing  further  need 
be  said  here  ;  his  method;  and  the  use  he  has  made  of 
the  material  furnished  by  the  Roman  Jurists,  or  rather 
by  the  modern  German  writers  on  the  Roman  Law. 

With  regard  to  the  Roman  Law,  it  will  be  sufficient  to 
say  that  it  furnished  a  favorable  subject  for  the  exercise 
of  Austin's  remarkable  analytical  genius  ;  and  that,  in 
consequence,  though  his  views  are  distorted  by  his  pecul- 
iar theory,  his  analysis  of  the  conceptions  of  the  Roman 
jurists  is  of  the  greatest  interest  and  utility.  And  it  is 
but  just  to  admit  that,  in  this  respect,  the  merits  of  Aus- 
tin's work  have  been  fairly  reproduced  by  the  later  writ- 
ers of  his  school.  We  may,  therefore,  pass  at  once  to  the 
consideration  of  his  method. 

The  method  of  Austin  can  be  described  only  by  saying 
simply  that  it  is  strictly  logical ;  but,  without  explanation, 
this  expression  will  perhaps  carry  with  it  but  little  sig- 
nificance to  the  average  reader.  The  method  consists  in 
the  accurate  statement  or  formulation  of  first  principles, 
and  in  reasoning  accurately  from  proj)Osition  to  proposi- 
4 


38 

tion,  precisely  as  in  geometry.  Hence,  such  reasoning 
has  been  called,  by  those  who  would  depreciate  it,  geo- 
metrical or  mathematical  ;  and,  though  the  expression  is 
improper, — because  the  terms  used  can  be  applied  with 
propriety  to  geometry  or  mathematics  only, — yet  the 
idea  intended  to  be  conveyed  is  correct :  for  there  is,  in 
fact,  no  essential  distinction  between  geometrical;  or  math- 
ematical, and  other  kinds  of  deductive  reasoning, — the 
superior  certainty  of  the  former  being  wholly  due 
to  the  greater  definiteness  and  accuracy  of  the  terms 
used.  The  same  method,  therefore,  that  applies  to 
mathematics  is  equally  applicable,  and, — though  fallen 
into  disuse, — equally  essential,  to  the  moral,  sciences  gen- 
erally;  in  which  the  connection  between  the  conclusions 
reached  and  the  premises  is  equally  certain  as  in  the 
mathematics;  so  that,  in  fact,  all  true  reasoning  is  de- 
monstrative or  apodictive.  Accordingly,  we  find  in 
Austin's  reasoning, — and,  this  is  its  distinguishing  char- 
acteristic,— the  closest  resemblance  to  that  of  Euclid  and 
other  geometricians.  And  in  this  he  differs  from  the 
great  mass  of  writers,  ancient  and  modern  ;  for  it  is  a 
fact,  undoubtedly  true,  though  but  little  appreciated,  that 
men  of  great  logical  genius,  like  Hobbes  and  Austin,  are 
as  uncommon  as  great  poets,  or  great  generals,  or  great 
statesmen. 

Hence,  naturally,  it  has  resulted  that  the  peculiar  mer- 
it of  Austin  in  this  respect  has  not  been  reproduced  in 
the  works  of  the  later  English  jurists,  who  have  alto- 
gether failed  to  appreciate  the  nature  and  value  of  his 
method,  and  while  accepting  generally  his  conclusions 
have  not  hesitated  to  reject  such  as  do  not  suit  them  ; 
though,  in  fact,  all  the  points  of  his  theory  are  so  bound 
together  by  the  iron  chain  of  his  logic,  that  not  one  can 
be  rejected  by  itself,  and  though  the  necessity  of  reject- 
ing any  one  of  them  must  be  taken  as  a  reductlo  ad  ah- 
surdum  of  the  whole  theory. 

SIR    HENRY    MAINE. 

§  2.  Of  .the  truth  of  these  observations,  the  views 
of  Sir  Henry  Maine  oft'er  a  striking  illustration.  Tiie 
historical  works  of  this  author  are  interesting  and  valu- 
able, and  they  are  distinguished  by  the  extent  of  knowl- 
edge displayed,  and  by  the  fairness  with  which  facts  are 
ascertained  and   stated,  without  regard  to  their  consist- 


ency  or  inconsistency  with  the  preconceivetTtlieory  of  the 
author.  His  reputation  as  a  historian  is,  therefore,  well 
deserved.  But  it  must  be  said  of  him,  as  was  said  of  Puf- 
fendorf  by  Leibnitz,  that  he  was  vhum pdvum  jurisconsul- 
ius  et  minime  phllosophus.  For  the  test  of  merit  in  scien- 
tific jurisprudence  and  philosophy  generally  is  consistency, 
and  capacit}^  to  perceive  cTearly  the  significance  of  the 
facts  with  which  the  author  deals  ;  and  in  this  he  was 
deficient;  as  may  be  sufficiently  shown  by  reference  to 
his  views  on  two  important  points,  selected  out  of  many 
others  that  might  be  cited. 

(1.)  He  accepts  and  formally  endorses  the  theory  of 
Austin;  but  at  the  same  time  he  admits,  and  even  takes 
great  pains  to  prove  that  it  is  historically  false,  or  in 
other  words,  that  it  is  not  founded  on  fact. 

''Nobody,"  he  says,  (alluding  to  what  he  calls  the  "re- 
markable analysis  of  legal  conceptions  effected  by  Ben- 
tham  and  Austin,'')  ''  who  has  not  mastered  the  elementary 
parts  of  that  analysis,  can  hope  to  have  clear  ideas  of  law 
or  jurisprudence."  And  this  analysis,  he  says, '' tallies 
exactly  with  the  facts  of  mature  jurisprudence,  and  with 
a  little  straining  of  language  may  be  made  to  correspond 
in  form  with  all  law,  of  all  kinds,  at  all  epochs."  But,  he 
adds,  there  are  certain  errors  "into  which  it  is  apt  to  lead 
us  on  points  of  historical  jurisprudence  "  ;  for  '*  it  is  curi- 
ous that  the  further  we  penetrate  into  the  primitive  his- 
tory of  thought,  the  further  we  find  ourselves  from  a  con- 
ception of  the  law  which  at  all  resembles  a  compound  of 
the  elements  which  Bentham  and  Austin  determined." 

''  Without  the  most  violent  forcing  of  language,  it  is 
impossible  to  apply  these  terms — command,  sovereign, 
obligation,  sanction,  right — to  the  customary  laws  under 
which  the  Indian  Village  communities  have  lived  for  cen- 
turies, practically  knowing  no  other  law  civilly  obliga- 
tory." "  Nor  in  the  sense  of  the  analytical  jurists  is  there 
right  or  duty  in  an  Indian  Village  community."  "  And 
hence,  under  the  system  of  Bentham  and  Austin,  the  cus- 
tomary law  of  India  would  have  to  be  called  morality — 
an  inversion  of  language  which  scarcely  requires  to  be 
formally  protested  against."^ 

But  he  concludes:  "  AVhenever  you  introduce  any  one 

of  the  legal  conceptions  defined  by  the  analysis  of  Bentham 

and  Austin,  you  introduce  all   the  others  by  a  process 

which  is  apparently  inevitable.    No  better  proof  could  be 

1  Village  Communities,  66-68. 


40 

given  that,  thouorh  it  be  improper  to  employ  these  terms 
— so^^ereigji,  subject,  co7n?uand,  obligation,  right,  sanction 
— of  law  in  certain  stages  of  human  thouglit,  they  never- 
theless correspond  to  a  stage  to  which  law  is  steadily 
tending,  and  which  it  is  sure  ultimately  to  reach. "^ 

The  effect  of  which  in  plain  language  is,  that  Bentham's 
and  Austin's  conception  of  the  law  has  never  in  fact  been 
historically  realized  ;  but  is  to  be  regarded  merely  as  an 
ideal  towards  \vhich  the  law  is  tending,  and  which  it  is 
ultimately  to  reach  ;  or,  in  other  words,  that  the  theory 
is  not  a  true  conception  of  the  law  as  it  is,  or  as  it  ever 
has  been,  but  of  the  law  as  the  author  thinks  it  ought  to 
be,  and  as  he  thinks  it  is  tending  to  become,  namely, — 
a  mere  collection  of  statutes. 

Of  this  new  theory,  the  only  proof  adduced  by  the 
author  is  the  coherency  of  Austin's  argument,  or,  in  other 
words,  the  logical  and  therefore  necessary  connection  be- 
tween his  conclusions  and  his  assumed  premise,  than 
which  he  thinks  ''no  better  j)roof  could  be  given."  But 
obviously  this  conclusion  is  illegitimate  ;  for  in  deductive 
reasoning,  however  conclusive  be  the  argument,  the  con- 
clusion is  merely  hypothetical,  and  its  absolute  truth 
must  depend  upon  the  truth  of  the  premise  assumed  ; 
which,  in  this  case,  is  that  all  law  is  in  fact  a  mere  ex- 
pression of  the  legislative  will.  Hence,  the  conclusion 
reached  by  Sir  Henry  Maine,  that  this  is  not  the  case, must 
be  taken  as  a  complete  refutation  of  Austin's  theory.  And 
this,  at  times,  he  iiimself  seems  to  realize.  "  Th^re  is," 
he  says,  "  such  wide-spread  dissatisfaction  with  existing 
theories  of  jurisprudence,  and  so  general  a  conviction  that 
they  do  not  really  solve  the  question  they  pretend  to  dis- 
pose of,  as  to  justify  suspicion  that  some  line  of  inquiry, 
necessary  to  a  perfect  result,  has  been  incompletely  fol- 
lowed or  altogether  omitted  by  their  authors."^ 

His  own  theory,  that  the  statutory  form  is  the  ideal  to 
which  the  law  is  tending,  although  to  some  extent  rendered 
plausible  by  existing  notions  in  England,  is  utterly  without 
verification  ;  and  fortunately  its  realization  is  as  impracti- 
cable as  it  would  be  disastrous  to  the  welfare  of  mankind. 

(2.)  The  remaining  point  to  w  hich  we  will  allude  is 
the  view  taken  by  Maine  of  the  law  of  nature,  which,  like 
other  modern  English  jurists,  he  looked  upon  as  a  "  theory 
plausible  and  compreliensive,  but  absolutely  unverified." 

1  Id,  69,  70. 

^Ancient  Law,  Chapter  V. 


41 

This  opinion,  however,  seems  to  have  arisen  from  a  mis- 
conception, on  his  part,  of  the  origin  and  meaning  of  the 
conception  of  the  ;ms  naturale  or  law  of  nature;  of  vvliich 
he  says:  "The  Koman  juristconsults  borrowed  from 
Greece  the  doctrine  of  the  natural  state  of  man  and  natural 
society,  anterior  to  the  organization  of  commonwealths  gov- 
erned by  positive  laws;"^  in  whicii  doctrine  he  seems  to 
think  the  origin  of  tlie  conception  is  to  be  found.  But  the 
term  jus  naturale^  as  used  by  jurists,  or  as  it  should  be 
translated,  natural  right  or  law^  has  no  sort  of  connection 
with  the  hypothesis  of  a  state  of  nature.  As  used  by  the 
Roman  jurists,  it  is  but  another  name  for  i\\QJus  gentiinn, 
which  is  defined  by  them  as  being  the  law  (jus)  "which 
natural  reason  has  established  among  men,"  and  which 
"is  observed  generally  among  all  peoples";  and  is  so 
called  "as  being  the  law  which  all  peoples  use.'*  And 
this  conception  is  obviously  taken  from  the  '''•nomas  hoi- 
mos  "  or  *'  common  law  "  of  Aristotle,  which  precisely 
corresponds  with  it,  and  which  is  defined  by  him  precisely 
in  the  same  way,  viz:  as  being  the  law  "which  is  con- 
formable merely  to  the  dictates  of  nature,"  and  which  is 
"  recognized  among  all  men."  That  in  Aristotle's  mind 
it  had  no  reference  to  the  admittedly  impossible  hypothe- 
sis of  a  state  of  nature,  is  sufficiently  shown  by  his  defini- 
tion of  man  as  being  merely  a  political  animal  [zoon  politi- 
kon'),  and  by  his  conception  of  natural  riglit  or  justice  as 
being  part  of  the  law  of  a  state  ;  which  accords  precisely 
with  the  opinion  of  Hobbes,  that  "  the  law  of  nature  is 
part  of  the  civil  law  of  all  commonwealths  of  the  world.'* 
!So  also  the  Roujan  jurists  regarded  the  jus  gentium  or  jus 
naturale^  not  as  the  code  originally  existing  in  a  state  of 
nature,  but  as  part  of  the  actual  law,  or,  as  elsewhere  said 
by  the  author  himself,  "  as  something  belonging  to  the 
present,  something  entwined  with  the  existing  institu- 
tions."2 

This,  as  we  shall  see,  has  also  been  uniformly  the  con- 
ception of  our  own  jurists,  prior  to  the  time  of  Austin  ; 
though  with  us  the  term  law  of  nature  is  seldom  used, 
but  more  generally  in  its  place  the  term  reason.  For,  as 
said  by  St.  Germain,  "  it  is  not  used  among  them  that  be 
learned  in  the  laws  of  Enorland  to  reason  what  thinor  is 
commanded  or  prohibited  by  the  law  of  nature,  and  what 
not.     But     *     *     ^     when  anything  is  grounded  upon 

1  Ancient  Law,  64,  68,  70,  71. 
2Id.,  70-71. 


42 

the  law  of  nature,  they  say  that  reason  will  that  such  a 
thing  be  done ;  and  if  it  be  prohibited  by  the  law  of  na- 
ture, they  say  that  it  is  against  reason,  or  that  reason  will 
not  suffer  it  to  be  done."  (Doctor  and  Student,  Mitchell, 
Clark  &  Co.,  Cincinnati,  1874.) 

And  this  gives  the  precise  meaning  of  this  much- 
abused  doctrine  of  the  law  of  nature,  which  simply  as- 
serts that  reason,  justice,  or  right  is  part  of  the  law, —  a 
proposition  almost  universally  asserted  by  jurists,  and  of 
the  truth  of  which  there  cannot  be  any  manner  of  doubt. 
And  of  its  truth,  indeed,  no  more  striking  proof  can  be 
given  than  in  the  observations  of  Sir  Henry  Maine  on 
the  part  it  performed  in  the  development  of  the  Roman 
law ;  viz,  that  "  the  progress  of  the  Romans  in  legal  im- 
provement was  astonishingly  rapid  as  soon  as  stimulus 
was  applied  to  it  by  the  theory  of  natural  law";  and, 
that  "  he  knew  of  no  reason  why  the  law  of  the  Romans 
should  be  superior  to  that  of  the  Hindoos,  unless  the  the- 
ory of  natural  law  had  given  it  a  type  of  excellence  differ- 
ent from  the  usual  one."^ 

§  3.  Mr.  Harrison's  views  of  Austin's  theory — as 
elaborated  in  several  essays  in  the  Fortnightly  Review — 
are  merely  a  somewhat  exaoraerated  form  of  those  of  Sir 
Henry  Maine,  and  are  cited  here  in  order  to  bring  out 
more  strongly  the  inconsistencies  of  that  author.  In  his 
opinion,  as  in  that  of  Sir  Henry  Maine,  Austin's  theory 
"  still  remains  to  Englishmen  the  foundation  of  rational 
jurisprudence  "  ;  and  "  in  Austin,  English  law  found  the 
first  conception  of  an  abstract  jurisprudence."  But  the 
theory,  he  thinks,  "  may  be  reduced  to  a  very  small  num- 
ber of  very  simple  propositions ;  and  the  truth  of  these 
propositions  has  been  asserted  in  much  too  absolute  a  way. 
YoY  *  *  -5^  they  depend  for  their  truth  on  assumptions 
which  are  very  far  from  being  universally  true  in  fact, 
and  they  require  qualifications  which  very  much  reduce 
their  scientific  value  as  social  laws." 

From  this,  it  may  be  observed,  it  is  obvious  that  the 
author  has  failed  to  appreciate  the  essential  characteristics 
of  Austin's  method  of  reasoning ;  which,  in  fact,  is  the 
only  method  that  can  be  deemed  truly  scientific.  For,  in 
logic,  if  a  proposition  be  not  altogether  true,  it  is  to  be 
regarded  as  false ;  and  it  is  logically  absurd  to  say  that 
its  truth  can  be  exaggerated,  or  that  it  can  be  asserted  in 
"  too  absolute  a  way."  So,  if  Austin's  conclusions  are 
lAncient  Law,  56,  75. 


43 

not  wholly  true,  either  his  reasoning  is  wrong  or  his 
premises  untrue;  and  in  either  case  iiis  conclusions  are 
wholly  unwarranted,  and  must,  therefore,  be  wholly  re- 
jected, unless  some  other  line  of  reasoning  can  be  found  to 
support  them. 

This  is  attempted  by  Mr.  Harrison,  but  hardly  with 
success.  His  view  is  that  Austin's  definition  of  the  law 
and  of  sovereignty,  though  absolutely  unverified,  and  in- 
deed unsusceptible  of  verification,  must,  for  some  reason 
not  very  apparent,  be  accepted  as  a  convenient  hypothe- 
sie.  '•  The  lawyer,"  he  says,  "  has  to  assume  law  as  rest- 
ing on  the  single  force  of  sovereign  authority  ;  whilst  in 
other  branches  of  thought  we  could  only  assume  this  hy- 
pothesis with  the  certainty  of  ending  in  confusion  and 
positive  error.  Politkally  and  socially  speaking,  law 
rests  on  something  more  than  force.  Jaridkally  speak- 
ing, it  rests  on  force  and  force  alone."  And  he  adds : 
''As  Sir  Henry  Maine  shows,  the  theory  excludes  from 
view  the  mass  of  historical  conditions  which,  in  almost 
every  society  known  to  us,  gives  sovereignty  its  social 
efficacy  and  its  distinctive  character."  But,  "  on  the  other 
hand,  all  this  is  just  what  the  lawyer  has  to  exclude  from 
his  view  by  a  scientific  artifice."  *'  The  result  is  that  the 
Austinian  conception  of  sovereignty  is  a  perfectly  sound 
conception  when  read  in  the  light  of  the  assumptions  by 
which  it  is  qualified  and  limited  to  the  sphere  to  which  it 
belongs.  *  *  *  But  as  a  general  proposition  of  human 
society,  without  the  prefixed  qualifications,  it  is  quite 
assailable  and  not  very  intelligible.  A.  real  step  was  taken 
in  the  history  of  scientific  jurisprudence  when  Sir  Henry 
Maine  pointed  out  the  conditions  under  which  the  defini- 
tions of  Austin  must  be  read — conditions,  I  think,  rather 
ignored  by  Austin  himself." 

In  which  last  opinion  the  author  is  doubtless  right.  Aus- 
tin always  had  a  clear  and  distinct  meaning,  and  meant 
what  he  said ;  and  had  it  occurred  to  him  that  his  theory 
needed  such  qualifications,  he  would  doubtless  have  aban- 
doned it.  Nor  is  it  easy  to  understand  how  it  can  still 
be  adhered  to  by  Mr.  Harrison  and  Sir  Henry  Maine. 
For  their  proposition,  in  plain  words,  is  simply  the  ob- 
viously untenable  one,  that  the  theory  is,  in  fact,  false, 
but,  for  some  inconceivable  reason,  must,  **  by  a  scientific 
artifice,"  be  regarded  by  lawyers  as  true;  or,  in  other 
words,  be  made  use  of  as  a  convenient  legal  fiction. 


u 

§  4.  Mr.  Pollock  criticizes  Austin  for  devoting  so 
much  of  his  work  to  the  theory  of  morality,  and  in  this 
Mr.  Harrison  concurs. 

''  I  think  it  a  mistake,"  the  former  says,  "  to  preface  the 
study  of  legal  conceptions  by  an  exposition  of  transcend- 
ental ethics,  and  not  less  a  mistake  to  preface  it,  as  Austin 
did,  by  an  exposition  of  the  principle  of  utility.  I  do  not 
see  that  a  jurist  is  bound  to  be  a  moral  philosopher  more 
than  other  men."  *' In  other  words,  our  English  school 
liolds  that  the  absolute  law,  which  is  or  should  be  the  origin 
or  pattern  of  all  existing  law — naturi'echt,  ns  the  Germans 
call  it, — either  does  not  exist,  or  does  not  concern  lawyers 
more  than  any  one  else."^  But  in  this  Messrs.  Pollock 
«nd  Harrison  are  less  logical  than  Hobbes,  Bentham,  and 
Austin,  all  of  whom  clearly  ])erceived  that  their  concep- 
tion of  the  law,  and  the  resulting  conception  of  absolute 
sovereignty  were,  in  fact,  not  only  inconsistent  with  the 
notion  of  the  existence  of  natural  rights,  or  natural  just- 
ice,— which  is  admitted  by  Mr.  Pollock, — but  also  with 
the  conception  of  right  and  wrong  as  commonly  con- 
ceived. For,  as  we  have  observed,^  the  very  conception 
of  rights  connotes,  and  necessarily  implies,  the  existence 
of  a  standard  of  right  and  wrong;  and  hence,  to  assert 
that  riorhts  are  the  mere  creatures  of  the  sovereijrn  will,  is 
to  assert  that  that  will  is  the  paramount  standard  of 
right  and  wrong.  He,  therefore,  who  asserts  the  defini- 
tion of  the  law  as  being  a  mere  expression  of  the  sov- 
ereign will,  logically  asserts  the  absolute  right  of  the  sov- 
ereign over  the  property,  the  liberty,  and  the  lives  of  its 
subjects,  and  denies  the  existence  of  all  human  rights, 
and,  consequently,  of  all  moral  distinctions.  To  Hobbes, 
Bentham  and  Austin, — as  it  must  be  to  all  logical  minds, — 
it  was  impossible  to  retain  their  confidence  in  the  prem- 
ises assumed  without  asserting  these  conclusions.  And, 
especially  with  reference  to  natural  justice,  was  this  ne- 
cessity apparent  to  them.  For,  to  quote  Bentham,  "  there 
is  no  reasoning"  in  any  other  way  "with  fanatics  armed 
with  natural  rights."  For,  as  they  clearly  ])erceived, 
there  is  no  way  of  sei)arating  morality  from  law  other- 
wise than  by  abolishing  it,  and  to  assert  the  existence  of 
morality  in  any  other  than  the  peculiar  form  in  which 
it  is  asserted   by  them  is  to  abandon   what  was  regarded 

iFssays  in  Jurisprudence  and  Ethics. 
2Ante,  p.  35. 


46 

by  tliem  as  an  essential  and  fundamental  part  of  their 
theory.^ 

§  5.  Mr.  Markby  is  one  of  the  most  pronounced  ad- 
herents of  Austin's  theory,  which  he  regards  as  ''  pretty 
well  established,"  and  as  "  generally  accepted  by  English 
jurists."  But  he  agrees  with  Mr.  Harrison  and  8ir 
Henry  Maine,  in  asserting  that  the  theory  is  not  historic- 
ally verified  ;  and  also  with  the  former  and  Mr.  Pollock,  in 
asserting  that  tlie  theory  does  not  rest  "upon  any  theory 
of  religion  or  morality,"  but  "might  be  accepted  by  a 
Hindoo,  by  a  Mohammedan,  or  by  a  Christian," — propo- 
sitions which,  as  we  have  seen,  in  effect  amount  to  a  re- 
pudiation of  Austin's  theory. 

But  j)erhaps  the  most  radical  departure  from  Austin's 
views  is  the  ])roposition,  asserted  by  Mr.  Markby,  that 
there  are  principles  or  rules  of  decision  habitually  used 
by  the  courts  which  are  no  part  of  the  law,  and  which  do 
not  become  such  by  reason  of  the  decision.  And  in  this, 
as  we  shall  see,  Mr.  Holland  in  effect  agrees. 

''  There  are  cases,"  says  Mr.  Markby,  "•  in  which  rules 
are  adopted  and  acted  on  by  judges  which  have  not  hith- 
•erto  existed  as  law,  and  which  judges  do  not  even  pre- 
tend to  make  law  by  acting  upon  them.  In  other  words, 
I  think  judges  constantly  arrive  at  a  point  at  which 
they  refer  to  a  standard  which  is  not  a  legal  one.  This 
takes  place  frequently  in  modern  English  law."  And  he 
adds  :  "  The  very  notion  that  a  rule  can  by  any  possi- 
bility be  transformed  into  law  by  judicial  recognition  is 
•quite  a  modern  one,  even  in  England;  and  nothing  of  the 
kind  has  ever  been  recognized  except  in  England,  and  in 
countries  that  have  formed  their  lesfal  svstems  under  the 
influence  of  England.  *  *  *  And  yet  we  find  that 
•everywhere  judges  unhesitatingly  refer  to  the  principles 
of  jurisprudence  as  generally  recognized,  to  the  principles 
of  equity,  and  to  the  guidance  of  common  sense,  and  they 
take  their  guidance  as  willingly  from  these  sources  as 
from  any  oiher." 

''  This  admission  seems  to  place  the  disciples  of  Austin 

i"The  first  ray  of  light,"  .^ajs  Duraont,  "which  struck  the  mind  of 
Benthaui  in  the  study  of  tlie  law,  was  the  perception  that  natural  rif/ht, 
the  original  pact,  the  moral  sense,  the  notion  of  just  and  vnjvst,  which 
are  used  to  explain  everything,  were  at  bottom  nothing  but  those  in- 
nate ideas  of  which  Locke  has  so  clearly  shown  the  falsity."  Introd. 
to  the  Principles  of  the  Civil  Code,  And  in  the  same  way,  as  we  have 
«een,  the  terms  conscience,  moral  sense,  and  similar  terms,  were  regard- 
■ed  by  Austin  as  mere  cloaks  for  hypocrisy  and  sinister  interest.  (Infra , 
p.  02.) 


46 

in  a  difficulty.  It  seems  to  show  that  Austin's  conception 
of  law  is  not  adequate,  even  as  applied  to  modern  English 
law;  and  that  it  is  equally  inadequate,  if  we  look  into  our 
own  past  history,  or  into  the  condition  of  law  in  other 
countries.  In  short,  it  seems  to  show  that  Austin's  con- 
ception  of  law  fails  as  a  general  or  scientific  conception."^ 

And  so  it  does,  though  the  author  attempts  unsuccess- 
fully to  reconcile  the  contradiction.  For  the  essential 
characteristic  of  Austin's  theory  is  not  merely  to  restrict 
the  term,  law,  to  statutory  enactments,  legislative  or  judi- 
cial, but  also  to  extend  its  a[)plication  so  as  to  include  all 
rules  and  principles  of  judicial  decision  ;  and  to  hold  that 
decisions  may  be  made,  or,  in  other  words,  that  rights  may 
be  determined,  by  principles  not  forming  part  of  the  law, 
such  as  those  of  jurisprudence,  or  natural  justice,  or 
equity,  is  to  surrender  his  whole  position. 

§  6.  Mr.  Holland  accepts  all  the  conclusions  of  Aus- 
tin. "  The  sovereign  part  of  the  State,"  he  says,  "  is  om- 
nipotent "  ;  "  an  act  is,  strictly  speaking,  never  unconsti- 
tutional unless  it  is  also  illegal,  and  can  never  be  either  if 
it  is  the  act  of  the  sovereign  power."  Rights  are  created 
by  the  sovereign  will ;  "  the  immediate  objects  of  law  are 
the  creation  and  protection  of  legal  rights  "  ;  "  that  which 
gives  validity  to  a  legal  right  is  in  every  case  the  force 
which  is  lent  to  it  by  the  State  "  ;  "international  law  can 
be  described  as  law  only  by  courtesy."  And  the  same  is 
true  of  constitutional  law. 

Nevertheless,  he  abandons  the  definition  of  Austin, 
that  the  law  is  merely  an  expression  of  the  will  of  the 
State, — which  is  the  premise  from  which  all  his  conclu- 
sions are  deduced, — and  adopts  an  essentially  different 
definition  ;  which  is,  that  "  a  law  is  a  general  rule  of  ex- 
ternal conduct  enforced  by  a  sovereign  power,"  and  the 
law  "  an  aorgresate  of  laws."  To  this  definition  there  is 
no  objection,  except  that  it  is  not,  in  a  true  sense,  a  defi- 
nition at  all  ;  in  which  respect  it  differs  from  that  of  Aus- 
tin, which  is  a  true  or  essential  definition.  From  the  lat- 
ter, all  the  conclusions  of  Austin's  theory  may  be  logically 
deduced  ;  but  they  cannot  be  deduced  from  Holland's 
definition.  Nor,  indeed,  can  anything  be  inferred  from 
it  ;  for  it  is  equally  consistent  with  Austin's  theory,  and 
also  with  that  which  asserts  that  justice,  or  natural  right, 
or, — to  state  it  in  the  form  most  obnoxious  to  the  modern 
English  jurist, — the  law  of  nature  is,  as  Hobbes  asserts^ 

^Elementary  Law,  §§23-4. 


47 

a  part  of  the  law ;  and   with  this  Austin's  definition  is 
altogether  inconsistent. 

Hence,  in  abandoning  Austin's  definition,  Holland 
loses  the  sole  foundation  upon  which  Austin's,  and  his 
own  conclusions  rest;  and  in  his  system  they  remain 
mere  gratuitious  assumptions,  without  even  an  attempted 
argument  to  support  them. 

Mr.  Holland  also  dissents  from  Mr.  Austin's  proposi- 
tion that  custom  does  not  become  law  until  it  is  recognized 
by  the  courts. 

"  The  state,"  he  says,''through  its  delegates,  the  judges, 
undoubtedly  grants  recognition  as  law  to  such  customs 
as  come  up  to  a  certain  standard  of  general  reception  and 
usefulness.  To  these  the  Courts  give  operation,  not 
merely  prospectively  from  the  date  of  such  recognition, 
but  also  retrospectively  ;  so  far  implying  that  the  cus- 
tom was  law  before  it  received  the  stamp  of  judicial  au- 
thentication. Tiie  contrary  view  supported  by  Austin  is 
at  variance  with  fact.  -^^  *  ^  Not  having  a  code  ready 
at  their  hand,  with  rules  for  every  emergency,  they  [the 
judges]  have  invoked,  as  the  ratio  of  their  decisions,  not 
only  equity,  or  the  generally  acknowledged  view  of  what 
is  fair,  and  previous  decisions  of  the  Court,  upon  the  faith 
of  which  it  is  to  be  presumed  that  people  have  been  act- 
ing, but  also  customs  established  among  and  by  the  peo- 
ple at  large,  as  presumably  embodying  the  rules  which 
the  people  have  found  suitable  to  the  circumstances  of 
their  lives.  The  Courts  have,  therefore,  long  ago  estab- 
lished as  a  fundamental  principle  of  law,  subject,  of 
course,  in  each  case  to  many  restrictions  and  qualifica- 
tions, that,  in  the  absence  of  a  specific  rule  of  written 
law,  regard  is  to  be  had,  in  looking  for  the  rule  which 
governs  a  given  set  of  circumstances,  not  only  to  equity 
and  to  previous  decisions,  but  also  to  custom."^ 

This,  in  effect,  is  to  assert  with  Hobbes  and  jurists  gen- 
erally, that  natural  right — of  which  equity  is  but  another 
name  —  as  also  custom,  is  part  of  the  law  ;  but  it  is  in- 
consistent with  x\ustin's  theory,  and  amounts  to  a  repu- 
diation of  it. 

§  7.  Mr.  Amos  is  also  a  pronounced  admirer  of  Austin. 
To  him  was  due,  he  says,  *'  the  deliverance  of  the  law 
from  the  dead  body  of  morality"  ;  and  he  "may  be  said 
to  have  been  the  true  founder  of  the  Science  of  Law,  if 
indeed  such  honor  could  ever  belong  to  any  one  man ''  -? 
or,  in  other  words,  to  him  "  the  conscious  establishment 
iJur.  48  9.  2Scientitic  Law,  4. 


48 

of  the  legal  science  must  properly  be  attributed."^  He 
also  unequivocally  accepts  the  definition  of  Austin  :  '^  A 
law,"  he  says,  *'  is  a  command  of  the  Supreme  Political 
Authority  of  a  state, "^  and  the  law  is  a  body  of  such 
commands."^ 

But  it  follows  from  this  definition,  and  Austin  emphat- 
ically asserts,  that  neither  International  nor  Constitu- 
tional Law  is  law  in  the  proper  sense,  but  each  is  nothing 
more  than  positive  morality.  It  would  seem,  therefore, 
that  Mr.  Amos,  in  accepting  his  definition,  committed 
himself  to  this  proposition.     But  such  is  not  the  case. 

"The  true  lesson,"  he  says,  *' enforced  l>y  the  seem- 
ingly impracticable  phenomenon  presented  by  the  body 
of  rules  forming  the  bulk  of  what  is  known  as  the  Law 
of  Nations,  ^  *  "^  is,  that  the  distinguishing  char- 
acteristics of  true  law  must  be  sought  for  somewhere  else 
than  in  the  nature  of  the  authority  from  which  it  pro- 
ceeds, and  in  the  certainty  of  the  punishment  by  which 
its  infraction  is  intended  ;  "*  and  accordingly  he  propounds 
the  question:  "  Whether  the  definition  of  the  term  law, 
as  given  by  the  most  recent  and  celebrated  school  of 
English  legal  writers,  is  not  based  on  too  restricted  a 
conception  of  the  phenomena  to  which  it  relates?"^ 

On  the  game  grounds,  he  is  also  of  the  opinion  with 
reference  to  Constitutional  Law,  that,  though  "  as  a  mat- 
ter of  ethical  or  historical  research,  the  use  of  the  word 
'morality'  is,  neither  inappropriate  nor  uninteresting," 
yet,  "just  as  in  the  parallel  case  of  International  Law, 
the  rules  in  question  are  as  unlike  as  possible  to  moral 
principles  and  maxims,  and  are  as  like  as  possible  to  gen- 
uine laws.'*^ 

There  could  not  be  a  more  perfect  demonstration  of  the 
falsity  of  Austin's  definition,  or  a  more  conclusive  refuta- 
tion of  the  theory  based  upon  it,  than  this  ;  but  appar- 
ently a  reductio  ad  ahsitrdum  is  not  regarded  by  Mr. 
Amos  as  a  legitimate  mode  of  argument. 

§  8.  One  other  case  will  be  referred  to  as  illustrating 
our  thesis.  The  doctrine  of  absolute  sovereignty  is  es- 
tablished, or  rather  the  attempt  is  made  to  establish  it,  by 
Hobbes  and  Bentham  and  Austin,  by  extended  and  elab- 
orate reasoning.  But  lately  a  shorter  method  has  been 
discovered,  which  I  find  attributed  to  Professor  Huxley, 
in  a  collection  of  essays  lately  published,  under  the  at- 
tractive but  misleading  title  of  "  A  Plea  for  Liberty^^ 

lid.  8.  3M.  ].  5Id.  322. 

^Jurisprudence,  73.         "'Science  of  Law,  324.       61^,115. 


49 

and  which,  I  may  say  in  passing,  is  calculated  to  remind 
one  of  old  Joab's  treatment  of  his  comrade,  Amaza,  wlien 
he  took  him  by  the  beard  to  kiss  him,  saying  :  '*  Art 
thou  in  health,  my  brother?"  and  stabbed  him  under  the 
fifth  rib. 

It  is  as  follows : 

"  The  power  of  a  State  may  be  defined  as  the  resultant 
of  all  the  social  forces  acting  within  a  definite  area.  '  It 
follows,'  says  Professor  Huxley,  with  characteristic  thor- 
oughness of  logic,  '  that  no  Hmit  is  or  can  be  set  to  State 
interference.' " 

From  this  the  author  proceeds  to  argue,  with  Hobbes 
and  Austin,  that  "the  power  of  the  State  is  absolute"; 
that  *'  it  still  remains  unlimited  despotism,  as  Hobbes  as- 
sumes"; *' that  rights,  when  created,  are  created  by  the 
strong  for  its  own  good  pleasure  "  ;  and  so  on,  to  all  their 
conclusions.^ 

But,  obviously,  the  argument  consists  of  a  mere  rhe- 
torical artifice,  and  can  hardly  be  accepted  as  a  satisfac- 
tory substitute  for  the  stalwart  logic  of  Hobbes  and  Aus- 
tin. The  term ybrc6s,  in  its  primary  sense,  denotes  merely 
physical  forces.  These  operate  under  fixed  laws,  from 
which,  if  the  direction  and  intensity  of  any  number  of 
forces  operating  on  any  point  are  known,  the  resultant  can 
be  mathematically  determined.  But  nothing  of  this  ap- 
plies to  human  powers,  or  to  social  or  moral  forces.  As 
to  these,  the  expressions  forceSi  and  resultant  of  forces  y 
are  purely  metaphorical.  In  a  direct  sense  the  proposi- 
tion, if  it  has  any  meaning  at  all,  amounts  only  to  the 
platitude  that  the  actual  power  of  the  government  is,  in 
fact,  the  preponderating  power  in  the  State.  It  says 
nothing  with  reference  to  the  rightful  power,  or  right  of 
the  State,  which  is  the  only  material  point.  Hence  its 
fallacy  consists  in  the  neglect  to  observe  the  ambiguity 
of  the  term  power,  to  which  I  have  already  alluded, 
(supra,  p.  24)  and  in  thus  confounding  mere  power,  or 
might,  with  rightful  power, ot  right.  In  the  premises,  the 
term  is  used  in  the  former  senses;  in  the  conclusion,  in 
the  latter;  and  thus  the  argument,  with  all  its  supposed 
**  thoroughness  of  logic,"  presents  a  transparent  case  of 
that  most  common  and  most  destructive  of  all  fallacies^ 
an  ambiguous  middle. 

^strangely  enough  the  preface  to  this  work  is  contributed  by  Mr. 
Herbert  Spencer,  who  is  tlms  apparently  made  to  stand  sponsor  for  a 
doctrine,  doubtless  as  abhorrent  to  his  soul  as  it  was  to  that  of  Aris- 
totle; in  whose  view,  "  to  intrust  man  with  supreme  power  was  to  give 
it  to  a  wild  beast  " 


CHAPTER  VI. 

REVIEW    OF    THE    AUSTIN    THEORY  OF    JURISPRUDENCE. 

§  1.  The  theory  of  Austin,  as  we  have  observed,  rests 
wholly  upon  his  definition  of  the  law,  as  a  first  prin- 
ciple. This  was  taken  by  him  from  Bentham,  who  in 
turn  took  it  from  Blackstone,  —  who  as  a  lawyer  ought 
to  have  known  better ;  and  neither  of  them  seem  ever  to 
have  suspected  that  any  doubt  could  be  entertained  of  its 
truth.  But  in  fact, — as  perhaps  sufficfently  appears  from 
what  has  been  said,  and  as  will  be  more  fully  shown  in  the 
sequel, —  it  is  an  essentially  false  description  of  the  law 
and  owes  its  plausibility  solely  to  the  verbal  identity  of 
the  terms,  *' a  /«t«,".and  *' the  law";  of  the  former  of 
which  only  is  it  a  correct  definition.  For  the  term,  "a 
law,"  in  our  language  commonly  denotes  merely  a  stat- 
ute or  act  of  legislation  ;  but  the  term  "  the  law  "  de- 
notes that  aggregate  of  rules  and  principles  by  which  in 
every  State  the  mutual  rights  and  obligations  of  its  cit- 
izens are  regulated,  and  the  decisions  of  its  Courts,  in 
matters  of  private  right,  determined ;  and  which  in  other 
languages  than  our  own  is  termed  Jus^  Droits  Recht^  or 
by  some  other  term  equivalent  to  our  word  Right. 

To  infer  from  this  usage  that  the  law  consists  merely  of 
right  or  justice  would, — as  Austin  and  his  school  have  not 
failed  to  insist, — be  unphilosophic ;  but  it  is  equally  ille- 
gitimate to  assume, — as  they  do, — from  the  different  usage 
of  our  own  language,  that  the  law  consists  entirely  of  stat- 
utes or  laws;  for  obviously  the  question  is  one  that  can  be 
determined  only  by  an  analysis  and  examination  of  the  law 
as  it  actually  exists. 

To  this  test  the  question  must  ultimately  be  submitted; 
but  it  usually,  and  perhaps  universally  happens  that  a 
false  theory  carries  in  itself,  in  the  inconsistencies  or  ab- 
surdities logically  involved  in  it,  the  seeds  of  its  own  de- 
struction ;  and  thus  generally,  to  logical  minds, the  readiest 
fneans  of  refuting  it  is  to  develop  its  logical  consequences. 

This,  in  the  case  of  Austin, —  as  may  be  seen  by  refer- 
ence to  the  statement  of  his  theory  heretofore  given, ^ — 
has,  in  the  main,  been  eftected  with  wonderful  logical  in- 
'^  Ante,  p.  3i  e  seq. 


51 

trepidity,  by  the  author  himself ;  but  there  are  certain 
j[)oints  witli  regard  to  which  he  seems  to  have  failed  to  per- 
ceive the  consequences  involved  in  his  views.  These  relate 
(1)  to  the  doctrine  of  sovereignty,  (2)  to  the  nature  of  judi- 
cial decisions,  and  (3)  to  the  nature  of  rights,  and  w^ill  be 
considered  in  the  order  stated.  Afterwards  (4)  it  will  be 
shown  that,  by  an  api)arently  slight  modification  of  Aus- 
tin's theory,  ah-eady  suggested  by  Markby  and  Holland, 
it  can  be  reconciled  with  truth  and  reason,  and  all  objec- 
tion to  it,  except  perhaps  on  the  score  of  impropriety  of 
language,  removed. 

§  2.  (1)  Two  arguments  are  used  by  Austin  to  estab- 
^ish  the  absolute  right  or  power  of  the  sovereign,  or  su- 
preme government,  viz  :  the  argument  from  utility,  and  the 
argument  from  the  definition  of  the  law.  The  former  has 
already  been  touched  upon  in  our  review  of  Hobbes,  and 
it  will  be  sufficient  to  rei)eat  here  that  while  it  clearly  es- 
tablishes the  necessity  of  government,  and  also  that  it 
should  be  vested  with  all  the  powers  or  rights  necessary 
and  proper  to  the  efficient  performance  of  its  functions, — 
which  must  necessarily  be  great, — it  does  not  establish,  or 
itend  to  establish,  that  these  should  be  absolute  or  unlim- 
ited. On  the  contrary,  with  reference  to  the  rightful 
power,  or  right  of  the  government,  it  seems  to  establish 
the  proposition  of  Rutherford,  that  the  "  civil  power  is  in 
its  own  nature  a  limited  power  :  as  it  arose  at  first  from 
the  social  union,  so  it  is  limited  by  the  ends  and  purposes 
of  such  union,  whether  it  be  exercised,  as  it  is  in  democ- 
racies, by  the  body  of  the  people;  or,  as  it  is  in  monarch- 
ies, by  one  single  person.*^     And  with    reference  to  its 

2  2  Institutes  of  Natural  Law.  p.  393. 

actual  power,  the  most  obvious  dictate  of  utility  is  that  it 
should,  as  far  as  practicable,  be  limited  to  such  power  as 
may  be  necessary  for  the  performance  of  its  functions. 

Hence,  it  is  obvious,  the  doctrine  of  absolute  sovereign- 
ty— if  it  can  be  maintained  —  must  rest  upon  the  other 
argument  urged  by  Austin,  namely,  the  argument  from 
the  definition  of  the  law,  of  which  it  must  be  regarded  as 
a  mere  corollary. 

This  definition,  as  I  have  said,  is  obviously  untenable ; 
but  for  the  present,  as  it  is  proposed  to  examine  merely 
the  consistency  of  Austin's  famous  argument, — which  not 
only  convinced  himself,  but  has  carried  conviction  to  the 
minds  of  two  generations  of  English  jurists,  and  is  still 
triumphantly  regarded  by  them  as  the  rock  upon  which 


52 

their  faith  is  founded, — the  definition  will  be  assumed  to 
be  true. 

The  argument  is  in  effect  that  it  follows  (ex  vi  termini) 
from  the  definition  of  the  law,  as  consisting  of  the  com- 
mands of  the  sovereign,  that  the  power  of  the  sovereign 
cannot  be  limited  by  law,  or,  in  the  language  of  Austin, 
"  is  incapable  of  legal  limitation.^" 

In  this  proposition,  it  will  be  observed,  Austin  uses  the 
term,  sovereign,  as  denoting  merely  the  '*  supreme  govern- 
ment,^^ or  supreme  political  organization  of  a  state,  (in 
his  own  language  "  the  monarch,"  or  "  the  sovereiorn  num- 
ber  in  its  collegiate  and  sovereign  capacity  "  ) ;  and,  con- 
sequently, the  law  is  to  be  regarded  as  consisting  of  the 
commands  of  this  sovereign,  i.  e.,  of  the  supreme  govern- 
ment, whether  consisting  of  a  monarch  or  a  sovereign 
body. 

Thus  construing  the  terms,  the  argument  is  obviously 
conclusive,  for  it  simply  asserts  that  the  power  uf  the 
sovereign  or  supreme  government  cannot  be  limited  by 
its  own  commands, — a  proposition  universally  true,  not 
only  of  sovereigns,  but  of  all  persons, — real  or  fictitious, — 
w^iatever.  But  the  proposition, — which,  thus  construed, 
is  entirely  innocent,  and,  indeed,  without  significance, — 
is  habitually  used  by  Austin  and  his  school,  as  though 
equivalent  to  the  proposition  that  the  power  of  the  gov- 
ernment is  unsusceptible  of  being  limited  by  statutory 
enactments, — a  proposition  essentially  different,  and,  at 
least  to  an  American,  obviously  false:  for  in  this  country 
the  powers  both  of  the  Federal  and  of  the  State  govern- 
ments are,  in  fact,  limited  by  organic  statutory  laws,  im- 
posed by  Constitutional  conventions,  or  constituent  assem- 
blies ;  and  it  cannot  be  doubted,  either  that  our  govern- 
ments are  supreme  governments,  or  that  our  constitutional 
enactments  are  statutes  or  laws  in  the  strictest  sense. 

This  difficulty  is,  indeed,  considered  by  Austin,  and 
solved  to  the  entire  satisfaction  of  himself  and  his  follow- 
ers ;  but  a  very  brief  examination  of  his  argument  will  be 
sufiicient  to  show  that  it  is  untenable,  and  that  it  in  fact 
presents  a  transparent  case  of  Ignoratio  elenchi  ;  of  which 
the  most  common,  and  dangerous  form  is, — as  is  here  illus- 
trated,— to  use  a  conclusion,  true  only  in  a  particular  sense 
of  the  terms  in  which  it  is  stated,  as  though  applicable  to 
other  cases  where  the  terms  are  used  in  a  different  sense. 

Here,  the  ambiguity  is  in  the  term,  sovereign;  which  is 

1  Suprr  p,  35. 


63 

commonly  used  to  denote,  not  only  the  supreme  govern- 
ment, or  political  organization  of  the  state,  but  also  the 
state,  or  the  people,  as  distinguished  from  the  govern- 
ment. These  two  senses  of  the  term  are  obviously 
confounded  in  the  argument  of  Austin.  For,  bearing  in 
mind  this  double  seose  of  the  term,  there  is  nothing  con- 
tradictory in  saying  that  the  supreme  government  may  be 
at  once  *' sovereign  "  and  **  not  sovereign  "  ;  i.  e.,  "sov- 
ereign," as  being  the  supreme  government,  but  **  not 
sovereign,"  as  being  the  state ;  or,  in  saying  that  the  gov- 
ernment, though  sovereign,  is  subject  to  a  higher  sover- 
eign :  namely,  the  state  ;  or,  in  saying  that  its  powers 
may  be  limited,  as  in  this  country,  by  statutory  laws  im- 
posed by  constitutional  conventions.  Nor  is  it  an  answer 
to  this  proposition  to  say, — as  is  undoubtedly  true, — that 
a  constitutional  convention  is  itself  a  legislative  assembly, 
or,  as  Austin  expresses  it,  '*  an  extraordinary  and  ulterior 
legislature,"  (Jur.  254)  ;  for  it  is  not  true  that  such  a  con- 
vention is  a  government,  even  when  in  session ;  still  less 
after  it  has  been  dissolved,  and  its  members  mingled  with 
the  body  of  the  people. 

It  is,  however,  a  cardinal  point  in  the  theory  of  Austin 
that  a  scDiction,  or  liability  to  punishment,  is  an  essential 
elen^ent  in  a  law  ;  and  hence  it  is  argued  that,  as  consti- 
tutional laws  have  no  power  behind  them  to  inflict  punish- 
ment for  their  violation  other  than  the  government  itself, 
they  are  not  in  fact  laws,  except  so  far  as  the  government 
may  choose  to  adopt  them.  But,  admitting  for  the  sake 
of  the  argument,  that  the  premises  are  correct,  the  con- 
clusion, it  can  be  readily  shown,  does  not  follow. 

Here,  also,  the  fallacy  lies  in  a  misuse  of  the  terms  sov- 
ereign and  sovereignty,  which  will,  therefore,  require  fur- 
ther explanation.  These  terms,  as  we  have  seen,  were  orig- 
inally applied  to  the  case  of  a  single  sovereign  or  monarch  ; 
and  in  this  sense, — which  is  their  only  proper  sense, — 
their  meaning  is  clear  and  distinct;  a  sovereign  is  a  mon- 
arch, in  whom  is  vested  the  highest^  or  supreme  power  in 
the  state ;  and  sovereignty  is  the  power  vested  in  him. 
But  the  application  of  the  term,  as  we  have  seen,  was  ex- 
tended by  Hobbes  to  aristocracies,  or  sovereign  bodies ; 
and,  since  his  time,  has  been  further  extended  so  as  to  em- 
brace such  composite  governments  as  those  of  England  and 
the  United  States  ;  and  recently  it  has  even  been  used  to 
denote  mere  abstractions  that  are  not  governments,  as  when, 
for  instance,  we  speak  of  "  the  sovereignty  of  the  people," 


64 

or  "  of  the  state,"  as  distinguished  from  the  government, 
or  of  "the  sovereignty  of  tlie  Uiw,"  or  "of  justice,"  or  of 
"  the  sovereignty  of  pubHc  opinion  ";  all  of  which,  even 
those  applied  to  governments,  are  improper  or  figurative 
senses  of  the  terms.  For  when  the  supreme  government 
consists  of  more  than  one,  whether  it  be  a  simple  assem- 
bly, or  a  more  complex  organization,  it  is  obviously  what 
is  called  a  corporation  or  body  corporate;  which  is  a  fic- 
titious or  imaginary  being  different  and  distinct  from  the 
individuals  of  which  it  is  constituted.  This  conception 
is,  indeed,  a  useful  one  in  the  law,  where  the  subject  of 
corporations  constitutes  a  leading  topic;  and  the  analogy 
between  such  fictitious  persons  and  real  persons  is  so  close, 
that  nearly  every  proposition  that  may  be  predicated  of  the 
one  will  be  true  also  of  the  other.  But  it  is,  nevertheless, 
unless  carefully  used,  a  very  dangerous  one;  for  there  is 
obviously  a  point  beyond  which  the  analogy  breaks  down, 
and  to  carry  it  further  would  be  a  source  of  error.  ^ 

And  of  this,  the  notion  of  the  indivisibility  of  sovereign 
power, — which  is  founded  wholly  on  the  conception  of 
government  as  a  corporation,  or  fictitious  being, — is  a 
conspicuous  instance.  For  while  it  is  obvious  that  the 
power  of  a  sovereign,  in  the  proper  sense,  or  a  monarch, 
cannot  be  divided,  it  is  equally  obvious  that,  in  the  case 
of  all  other  kinds  of  sovereigns,  including  simple  sovereign 
assemblies,  sovereign  power  is  not  only  divisible,  but  is  in 
fact  necessarily  divided.  For  the  power  of  which  we  are 
treating  is  human  power,  or  power  vested  in  some  actual 
human  being;  and  hence  a  sovereign  power  is  to  be  de- 
fined simply  as  the  power  of  an  oflScer  or  department  which 
has  no  superior,  or  which  is  not  subordinate  to  any  other; 
and  there  must,  therefore,  be  as  many  sovereign  powers, 

1  The  celebrated  case  of  Dartmouth  College  vs.  Woodward,  (4  Wheat. 
518.)  furnishes  a  striking  instance  of  pushing  this  analogy  too  far.  In 
that  case  the  principle  was  asserted  that  a  charter  to  a  corporation  is 
a  contract,  which,  under  the  constitutional  provision  forbidding  the 
enactment  of  laws  impairing  the  obligation  of  contracts,  could  not  be 
altered  by  the  State  ;  and  the  principle  was  held  to  apply  to  the  char- 
ter of  the  plaintiff,— an  eleemosynary  corporation.  But  it  is  clear  that, 
strictly  speaking,  a  corporation,— which  is  a  purely  fictitious  or  imag- 
inary being, — cannot  itself  have  any  rights,  and  that  what  we  call  the 
rights  of  a  corporation  are,  in  fact,  the  rights  of  its  stockholders,  cred- 
itors, or  other  individuals  beneficially  interested  ;  and  hence  that  the 
constitutional  provision  can  have  no  application,  if  there  are  no  such 
persons,— as  was  in  fact  the  case  before  the  Court.  Hence  in  that  case, 
—as  in  all  others  where  property  has  no  other  owner,  the  beneficial 
interest  in  the  property  of  the  corporation  was  in  the  State,  and  it  could 
deal  with  it  as  it  pleased.  Or,  to  state  the  proposition  more  generally, 
all  property  held  for  charitable  purposes,— at  least,  after  the  death  of 
the  donors, — belongs  to  the  State,  and  may  be  disposed  of  by  it  accord- 
ing to  its  own  views  of  what  is  right  and  proper. 


66 

— or,  we  may  say,  sovereigns, — as  there  are  co-ordinate 
officers  or  departments  in  the  government.  Thus,  in  the 
American  governments  sovereign  power  is  vested  in  the 
President  or  Governor ;  also  in  Congress  or  the  Legis- 
lature, and  also  in  the  judicial  department  ;  and  these 
powers  are  not  only  separate,  but  essentially  different  in 
their  natures,  and  independent  of,  and  co-ordinate  with 
each  other.  Each  department  is  therefore  supreme  or 
sovereign  in  the  province  allotted  to  it ;  and  there  is  no 
reason,  except  for  convenience,  why  these  different,  sep- 
arate, independent,  supreme  powers  should  be  regarded 
as  one.  We  may,  indeed,  if  we  desire,  thus  conceive  of 
the  government  as  a  fictitious  or  artificial  person,  exercis- 
ing these  various  functions  through  its  several  depart- 
ments ;  but  back  of  this  conception  lies  the  fact  that  this 
artificial  person  can  exercise  no  functions  whatever,  except 
alternately  through  one  or  the  other  of  the  supreme  po- 
litical organizations,  or,  as  they  may  be  called,  sovereigns, 
of  which  it  is  constituted.  Hence,  if  we  would  avoid 
error,  when  we  use  the  terms  sovereign  and  sovereignty, 
in  any  other  than  their  proper  sense,  as  applying  to  a 
monarch,  or  single  sovereign,  it  is  always  to  be  remem- 
bered that  we  are  dealing  with  a  purely  fictitious  notion, 
the  creation  of  our  own  minds,  which  has  no  counterpart 
in  nature  ;  or,  in  other  words,  that  we  are  dealing  with 
the  power,  not  of  actual  men, — with  which  alone  jurispru- 
dence is  ultimately  concerned, — but  with  that  of  a  ficti- 
tious or  ideal  being,  without  intelligence,  conscience,  or 
will.  For  otherwise,  according  to  the  peculiar  mode  in 
which  we  may  choose  to  construct  our  artificial  sovereign, 
— and,  with  reference  to  every  complex  government,  our 
ability  to  vary  his  nature  is  unlimited, — any  number  of 
the  most  contradictory  conclusions  may  be  reached, — as, 
for  instance,  in  the  case  of  our  government  alone,  that 
the  sovereign  power  is  vested  in  the  states,  regarded  as  an 
assembly  of  fictitious  persons  or  bodies  politic,  (which  is 
Austin's  notion);  or  in  the  states  individually;  or  in  the 
federal  government,  to  the  exclusion  of  the  states  ;  or  in 
the  people  of  the  United  States  collectively ;  or — as  held 
by  a  late  writer  on  the  constitution — in  that  class  or  num- 
ber of  people,  or  party,  whose  power  at  any  time  may 
happen  to  preponderate.  In  short,  with  the  power  of 
creating  our  premises  at  will  which  the  use  of  fiction  give's 
us,  any  conclusion  desir.ed  may  be  established. 

Of  this,  the  argument  of  Austin,  which  we  are  examin- 


56 

ing — viz:  that  ordinances  or  statutes  enacted  by  consti- 
tutional conventions  are  not  laws,  for  lack  of  sanctions  to 
enforce  them, — is  an  instance.  For  independently  of  the 
fact  that  the  observance  of  such  laws  is  enforced  by  fear 
of  revolution  or  rebellion,  or  of  a  constitutional  change 
of  the  government, — which  is  a  sanction  essentially  iden- 
tical in  nature  with  the  sanctions  by  which  individuals  are 
impelled  to  obedience, — the  proposition  is  otherwise  obvi- 
ously false.  For,  while  we  cannot  punish  the  fictitious 
being  which,  in  corporate  governments,  is  conceived  to 
constitute  the  sovereign, — and  which,  in  the  language  of 
an  eminent  jurist,  has  neither  a  soul  to  be  saved,  nor  a 
body  to  be  kicked — we  can  punish  the  actual  human  be- 
ings in  whom  the  power  is  in  fact  vested ;  that  is  to  say, 
the  President  or  Governor,  (or  in  England  the  ministers 
of  the  Crown,)  the  members  of  the  Legislature,  and  the 
judges  ;  and  it  is  very  certain  that,  if  these  can  be  re- 
strained by  the  fear  of  punishment,  we  need  have  no  fear 
of  our  imaginary  Leviathan. 

Indeed,  as  we  have  seen,  independently  of  this  consid- 
eration, it  is  obvious  that,  except  in  the  case  of  a  mon- 
archy, absolute  political  power  is  impossible.  For  from 
the  nature  of  the  case,  as  was  very  clearly  perceived  by 
Hobbes,  to  divide  the  sovereign  or  supreme  political 
power  between  several  individuals  or  departments  is,  of 
necessity,  to  diminish  or  limit  it ;  for,  in  such  case,  the 
power  of  each  officer  or  department  is  limited  by  that  of 
the  others ;  and,  as  each  part  is  limited,  it  follows  that 
the  whole  must  also  be  limited.  Hence,  as  I  have  said 
elsewhere,  the  maxim  "  Divide  et  impei^a  "  is  as  obvious 
a  principle  of  political  organization  as  it  is  of  war  or  di^ 
plomacy ;  and,  indeed,  it  is  to  the  application  of  this  prin- 
ciple that  all  improvement  in  political  organization  is  due. 

§  3.  (2)  Upon  the  most  cursory  examination  of  the  law, 
with  a  view  of  testing  the  accuracy  of  Austin's  definition, 
w^e  are  confronted  with  the  fact  already  alluded  to,  that 
it  consists  in  the  main  of  rules  and  principles  established 
by  precedent  or  judicial  decision,  and  that  laws  in  the 
ordinary  sense,  or  statutes,  constitute  but  a  small  and  com- 
paratively unimportant  part  of  it ;  which  would  seem  to  be 
a  conclusive  refutation  of  the  definition.  But,  as  we  have 
seen,  Austin,  to  meet  this  point,  asserts  that  the  judges, 
in  effect,  exercise  legislative  functions,  and  that  their  de- 
cisions are,  in  their  essential  nature,  statutes  or  commands 
of  the  sovereign  made  or  enacted  by  the  judges  as  its  sub- 


67 

ordinate  officers.  It  is  clear,  therefore,  that  here  lies  a 
crucial  test  by  which  the  truth  or  falsity  of  the  definition 
is  to  be  determined,  and  that,  if  this  proposition  be  found 
untenable,  the  definition  must  be  rejected.^ 

A  full  discussion  of  this  proposition  would  involve  an 
examination  of  the  nature  of  the  judicial  function,  and  of 
the  doctrine  of  stare  decisis,  or  of  the  authority  of  judicial 
decisions, — a  subject  of  great  interest,  but  which  would 
demand  a  greater  space  than  we  can  here  give  it.  But,  as 
fortunately  the  subject  will  be  more  or  less  familiar  to  the 
reader,it  will  perhaps  be  sufficient  on  these  points  to  observe 
that  the  proposition  is  opposed  to  the  uniform  opinion  of 
the  jurists,  both  of  our  own  and  of  the  Koman  law,  as  em- 
bodied in  the  maixim,judicis  est  jus  dicere^non  dare  ;  that 
it  is  in  conflict  with  the  rule  of  stare  decisis,  as  uniformly 
interpreted  by  the  authorities  of  either  law ;  and  that  it  is 
subversive  of  the  supposed  distinction  between  the  several 
'functions  of  government,  namely,  the  executive,  the  legis- 
lative, and  the  judicial,  which  has  long  since  come  to  be 
received  in  political  science  as  fundamental. 

But  such  a  discussion  though  interesting,  is,  1  think, 
unnecessary  here, — as  the  doctrine  carries  in  itself  its  own 
refutation,  and  can  be  readily  disposed  of, — as  we  have 
seen  is  the  case  with  other  points  of  the  theory, — by 
merely  considering  the  consequences  logically  involved 
in  it.     Of  these  the  most  obvious  are  the  following: 

The  doctrine  in  question  is  founded  on  the  rule  of 
stare  decisis, — of  which  indeed  it  purports  to  be  but  an 
expression.  It  will  therefore  apply  to  the  decisions  of 
the  Courts  on  the  construction  and  effect  of  statutes, 
equally  as  to  their  decisions  on  other  questions.  What- 
ever doubts  and  conflicts  may  have  arisen  with  reference 
to  the  application  of  the  rule  in  other  respects,  it  has 
never  been  suggested  that  there  is  any  distinction  to  be 
made  between  its  application  to  acts  of  the  legislature,  or 
ordinary  statutes,  and  its  application  to  rules  otherwise 
established.  Hence  it  follows  that  the  ordinary  legis- 
lature cannot  enact  a  valid  law  as  to  matters  of  private 
right ;  for  such  law  or  supposed  law  cannot  be  enforced 
otherwise  than  by  the  Courts,  and  is,  therefore,  without 
a  sanction, — which  according  to  the  theory  is  an  essen- 

^It  is  worthy  of  remark  that  on  this  point  Austin  differs  from  Ben- 
tham,  who  regarded  this  exercise  of  power  by  tlie  judges  as  a  usurpa- 
tion. But  Austin,  with  a  clearer  perception  of  the  logical  exigencies  of 
the  case,  was  compelled  to  invent  the  monstrous  doctrine  that  the 
judges  are,  in  fact,  vested  with  legislative  power. 


58 

tial  element  of  a  true  law, — until  it  is  so  recognized ; 
and,  if  the  Courts  fail  to  recognize  it,  or  give  it  an  er- 
roneous construction,  it  can  never  become  a  law.  In 
this  respect,  statutes  stand  in  precisely  the  same  category 
as  customs  or  principles  of  natural  right ;  which,  accord- 
ing to  the  theory,  cannot  become  law  until  adopted  by 
the  Courts. 

Nor  can  it  be  consistently  said  by  Austin  and  his  fol- 
lowers that  the  judges  ought  to  carry  out  the  enactments 
of  the  legislature.  For,  according  to  their  theory,  ohli' 
gallon  consists  merely  in  the  liability  to,  and  fear  of, 
punishment  ;  and  to  say  that  a  man  ought  to  do  or  not 
to  do  anything,  or  is  under  obligation  to  do,  or  not  to  do 
it,  means  simply  that  the  performance  or  non-perform- 
ance of  the  act  is  imposed  upon  him  by  the  fear  of  im- 
pending punishment ;  of  which  in  this  country,  and  gen- 
erally in  others, — except  in  a  few  extreme  cases,  which 
will  not  materially  affect  the  question, — the  judges  have 
no  cause  to  have  apprehension ;  but  rather  it  may  be  said 
that  there  is  no  other  situation  in  life  in  which  stupidity 
and  even  conscious  injustice  can  be  exercised  with  such 
entire  impunity  as  on  the  bench. 

Nor  can  there  be  any  law  of  any  kind  binding  on  the 
judges.  For,  being  vested  with  legislative  power,  they 
can,  if  they  please,  disregard  the  decisions  of  their  prede- 
cessors, not  only  with  impunity,  but  without  blame.  For 
the  legislative  power  is,  in  its  essential  nature,  an  arbi- 
trary power,  and  to  be  exercised  according  to  the  maxim 
voluntas  stet  pro  ratione,  and  the  rule  applies,  leges  i^os- 
teriores  abrogant  2oriores. 

Nor  is  it  any  answer  to  this  to  say  that  the  judges 
ought  to  follow  the  decisions  of  their  predecessors.  Most 
people  indeed,  think  that  they  ought  in  general  to  do  so, 
and  they  think  also  that  customs,  when  rational,  and  also 
principles  of  justice  and  right,  should  be  observed  by  the 
Courts;  but,  according  to  the  theory,  these  are  mere 
moral  considerations  with  which  the  law  is  not  con- 
cerned. 

Hence,  as  the  ultimate  consequence  of  the  doctrine,  we 
must  conclude  that  law  is  in  fact  impossible,  and  that  the 
sole  standard  of  men's  rights  must  always  consist  in  the 
fluctuating  and  unforeseeable  opinions,  or  rather  de- 
cisions, of  the  Courts ;  and  this  in  fact,  it  is  to  be  appre- 
hended, is  something  like  the  condition  to  which  the  in- 
fluence of  this  pernicious  doctrine  upon  modern  lawyers 
has  reduced  the  law  at  the  present  day. 


59 

§  4.  (3)  It  is  a  proposition  eo  often  stated  as  to  have 
become  commonplace,  and  that  has  in  effect  been  asserted 
in  all  the  fundamental  laws  of  our  race,  from  Magna 
Charta  to  the  last  state  constitution,  that  it  is  the  function 
of  government  to  establish  justice,  or,  in  other  words,  to 
secure  the  observance  of  private  rights.  Verbally  this 
proposition  is  admitted  by  the  Austin  school  of  jurists; 
but  in  effect  it  is  denied  ;  for,  according  to  their  defini- 
tion, a  right  is  nothing  more  than  the  capacity  or  power 
conferred  upon  one  by  the  state  to  control  the  actions  of 
another,  or  of  others.^ 

In  his  view  and  that  of  his  followers,  therefore,  the 
sole  essential  element  in  a  right  is  power  over  others, 
conferred  by  the  state.  Where  this  exists,  whether  such 
power  be  right  or  wrong,  just  or  unjust,  it  constitutes  a 
right ;  and  without  it  no  right  can  exist.  In  other  words, 
in  their  view,  the  terms  "  a  right  "  or  ^'  inr/hts  "  and  the 
adjective  "  7'ight "  have  no  community  or  identity  of 
meaning,  but  are  merely  homonymous. 

Sometimes  indeed,  as  we  have  observed,  Austin,  and 
also  other  legists,  speak  of  moral,  as  opposed  to  legal 
rights, — but  we  are  plainly  told  that  this  is  merely  for  the 
sake  of  conformity  to  common  language.  "  Strictly 
speaking,"  he  says,  **  there  are  no  rights  but  those  which 
are  creatures  of  the  law."^  And  Bentham  is  even  more 
emphatic.  "The  word,  rights,"  he  says,  "  the  same  as 
the  word  law,  has  two  senses  ;  the  one  a  proper  sense, 
the  other  a  metaphorical  sense.  Rights,  properly  so 
called,  are  creatures  of  law,  properly  so  called :  real  laws 
orive  birth  to  real  rights.  *  ♦  *  Natural  rights  are 
the  creatures  of  natural  laws:  they  are  a  metaphor  which 
derive  their  existence  from  another  metaphor."  But  ob- 
viously this  is  to  leave  out  an  essential  element  in  the 
signification  of  the  term  *' a  right,"  or  ''rights,"  which 
in  its  proper,  and  universally  received,  as  well  as  in  its 
etymological  sense,  connotes  or  implies,  as  part  of  its 
essential  meaning,  the  quality  of  rightness  or  rectitude ; 

1 "  A  person  has  a  right,  wlien  the  law  authorizes  him  to  exact  from 
another  an  act  or  forbearance  *  »  «  The  capacity  or  power  of  ex- 
acting from  another  acts  or  forbearances  is  nearest  to  a  true  definition." 
Austin,  Jur.  410.  To  the  same  effect  is  Amos,  Jur.  79.  Holland's  defi- 
nition is  somewhat  different,  but,  so  far  as  bears  upon  the  subject  of 
discussion,  in  effect  the  same.  According  to  it,  a  right  is  "  a  capacity 
residing  on  one  man  of  controlling,  with  the  assent  and  assistance  of 
the  state,  the  actions  of  another.  That  which  gives  validity  to  a  legal 
right  is  in  every  case  the  force  which  is  lent  to  it  by  the  state."  Jur. 
8,62. 

2  Jur.  354. 


60 

or,  in  other  words,  a  right  is  not  merely  a  power,  but  it 
is,  ex  vi  termini^  always  a  rightful  power.  Hence  the 
so-called  rights  of  Austin  are  not  true  rights,  but  merely 
what  are  called  in  the  law  actions  ;  which  are  defined 
by  the  jurists,  both  of  our  own,  and  the  Roman  law, 
substantially  in  the  same  way.^ 

Hence,  an  obvious  question  presents  itself.  If  it  be 
assumed,  as  it  is  in  effect  assumed  by  this  theory,  that 
the  notions  of  right  and  wrong,  and  oF  the  just  and  un- 
just, as  popularly  conceived,  are  erroneous,  why  keep 
alive  these  delusions  by  transferring  the  use  of  the  term 
''  right  "  to  another  subject,  to  which,  in  its  proper  sense,  it 
cannot  apply,  and  which  already  has  its  appropriate  term 
to  denote  it?  Why  not  say  at  once  that  the  law  is  con- 
cerned with  actions  only,  and  that  it  has  nothing  to  do 
with  rights  of  any  kind?  In  this  way  the  legists  would 
rid  the  subject  of  all  confusion,  and  would  no  longer  de- 
lude people — and  perhaps  themselves — into  the  supposi- 
tion that  they  are  treating  of  rights,  when  they  are  not 
only  treating  of  something  essentially  different,  but  act- 
ually denying  their  very  existence ;  and  the  only  con- 
ceivable reason  why  this  course  should  not  be  pursued 
is  that  this  sacred  name,  rights^  and  its  correlatives,  jus- 
tice or  right,  serve  as  a  convenient  cloak  which  cannot  be 
dispensed  with  without  exposing  the  hideous  deformity  of 
their  theory. 

§  6.  (4)  The  above  observations  suggest  a  mode  in 
which,  by  an  apparently  slight  modification  of  the  legal 
theory,  it  may  be  stripped  of  its  objectionable  features, 
and  made  conformable  to  truth  and  decency. 

The  definition  of  a  law  as  an  expression  of  the  will  of 
the  state,  if  confined  to  the  subject  to  which  it  relates,  is 
unobjectionable  ;  nor  is  there  any  objection — except  that 
it  is  opposed  to  the  more  common  usage — to  denoting  the 
aggregate  of  laws  by  the  term,  the  law  ;  nor  is  there  any 
serious  objection,  beyond  that  of  impropriety  of  language, 
to  adopting  the  fiction  of  Hobbes,  that  whatever  the  sov- 
ereign permits  he  commands,  and  to  thus  extending  the 
application  of  the  term  law  so  as  to  include  not  only  laws 

1  ^*  Actio  nihil  aliud  est  quam  jus  persequendi  injudic.io  quod  alicui  deh- 
itur";  which, — as  the  term,  jus,  is  used,  in  the  Latin,  to  denote  mere 
legal  powers  as  well  as  rights,— may  be  translated:  "An  action  is 
nothing  else  than  the  legal  power  of  prosecuting  before  the  Courts 
what  is  due  to  any  one  "  Hence,  acording  to  Heineccius,  "An  action  is 
not  a  right,  but  a  means  of  prosecuting  a  right."  "  Actio  non  est  jus, 
sed  medium  jus  persequendi.'' 


61 

in  the  strict  sense, — or  statutes, — but  also  all  arbitrary  or 
peculiar  rules  and  principles  of  the  law;  or  in  other  words, 
so  as  to  include  the  whole  of  the  jus  civile  or  nomas  idios 
as  conceived  by  the  Roman  lawyers,  and  before  them  by 
Aristotle.  But  in  doing  this  we  must  guard  against  the 
«rror  of  supposing  that  the  term,  law,  as  thus  defined,  will 
include  all  that  is  now  included  under  the  term,  the  law, 
in  its  wider  and  more  common  sense  of  jus.  For  in  this 
sense  the  law  includes  not  only  the  jus  civile^  or  peculiar 
law  of  the  state,  but  also  the  jus  geutiuin^  "or  jus  natuv- 
ale'';  which  by  our  new  definition  is  excluded.  Nor  is  it 
necessary  for  us  to  deny  the  existence  of  the  jus  naturale^ 
or  natural  right :  all  that  it  is  necessary  to  affirm  is,  that 
it  is  not  part  of  the  law  as  we  now  define  it. 

But,  in  accepting  this  view  of  the  case,  we  necessarily 
affirm  with  Markby  and  Holland,  that  the  judges  in  de- 
termining controversies  will  not  be  confined  to  the  law, 
but  must  resort  also  to  matters  outside  of  the  law.  For 
it  is  the  admitted  function  of  the  state  through  its  judges 
to  administer  justice  ;  or  in  other  words,  to  enforce  rights; 
and  to  do  this  it  is  necessary  to  have  resort  to  equity,  justice, 
or  natural  right ;  which  terms  denote  merely  the  aggregate 
of  the  principles  by  which  rights  are  determined.  In 
other  words,  according  to  our  definition,  the  law  of  private 
right  w^ould  consist  merely  of  the  doctrine  of  actions;  but 
these,  according  to  a  fundamental  maxim  both  of  our  own 
and  the  Roman  law,  (iihi  jus  ibi  remedium,)  would  have 
to  be  determined  by  a  resort  to  the  doctrine  of  rights,  or 
natural  right  ;  which,  though  outside  of  the  law,  would 
still  furnish  the  principles  by  which  the  question  of 
right,  or  in  other  words,  the  merits  or  justice  of  the  case, 
would  have  to  be  determined.  Thus  modified,  the  the- 
ory would  conform  precisely  to  that  of  Hobbes  ;  and  in 
this  manner  justice  and  the  law  instead  of  being  antag- 
onized, as  they  are  under  the  present  form  of  the  theory, 
would  be  reconciled ;  and  the  aggregate  of  the  two — 
which,  as  under  our  present  hypothesis  it  can  no  longer 
be  called  lavj^  we  may  call  jus — will  conform  precisely 
to  that  which  is  now  denoted  by  the  term,  the  law. 
Hence,  it  will  be  perceived,  the  modification  of  the  legal 
theory  suggested  by  Markby  and  Holland,  which  was 
regarded  by  them  as  not  materially  affecting  it,  in  fact 
essentially  changes  it,  and  in  effect  converts  it  into  the 
jural  theory,  and  themselves  uncLUSciously  from  legists 
mio  jurists. 


CHAPTER  VII. 

UTILARIANISM.l 

§  1.  The  sole  function  performed  by  the  principle 
of  utility  in  A.ustin's  theory  is,  to  establish  the  supremacy 
of  government,  and  its  further  discussion  might  there- 
fore be  dispensed  with,  were  it  not  for  the  fact  that  prac- 
tically the  theory  is  used  by  Bentham  and  Austin,  and  by 
the  utilitarians  generally,  apparently  for  the  purpose  of 
destroying  the  moral  convictions  or  conscience  of  man- 
kind; or,  in  other  words,  for  the  very  purpose  that,  Aus- 
tin says,  is  not  within  its  scope  or  object,  namely,  "  to 
crush  the  moral  sentiments  "  as  actually  existing  in  the 
general  conscience.^ 

Of  this,  Austin's  own  use  of  the  theory  furnishes  a 
type.  In  his  view,  ''  the  moral  sense,  practical  princi- 
ples, conscience,  *  *  ♦  are  merely  convenient  cloaks 
for  ignorance  or  sinister  interest;^  and  the  terms  Jws^ 
and  unjust^  when  used  otherwise  than  as  denoting  con- 
formity, or  non-conformity  to  the  Sovereign  Will,  are  to 
be  regarded  as  ^' a  mischievous  and  detestable  abuse  of 
articulate  language."*  But  in  his  Austin  was  not  only 
in  error,  but  inconsistent ;  for  elsewhere,  in  expounding 
the  theory  of  utility,  he  is  emphatic  in  asserting  that,  ac- 
cording to  it,  conduct  is  to  be  determined  by  rules ;  that 
such  rules,  from  the  nature  of  the  case,  must,  by  the  great 
mass  of  mankind,  be  accepted  "  on  authority,  testimony, 
or  trust "  ;  and  that  the  acts  enjoined  or  forbidden  by 
these  rules  are  invariably  accompanied  by  a  moral  senti- 
ment or  feeling,  or  "  a  sentiment  or  feeling  of  approba- 
tion or  disapprobation,"  which  is  ''inseparably  connected 
in  the  mind  with  the  thought  or  conception  of  such  acts."  ^ 
But  when  he  attacks  the  authority  of  the  common  notions 
of  right  and  wrong,  justice  and  injustice,  he  forgets  the 
true  principle  of  his  theory,  and  uses  it  as  though  it  were 
an  effective  argument  for  his  purpose,  instead  of  being,  as 
it  is,  an  argument  by  which  the  common  moral  notions 

iThe  subject  of  this  chapter  is  treated  in  Right  aud  Law,  cited  supra^ 
and  what  is  there  said  is  here  to  some  extent  repeated  ;  but  it  is  now 
more  fully  developed. 

2Jur.  120.  4  Id.  223. 

s Id.  221.  ojur.,118,  119,  127. 


63 

of  mankind,  and  especiallj  those  of  justice,  may  be  vin- 
dicated. It  becomes  necessary,  therefore,  to  examine 
the  theory  of  utility,  with  a  view  of  seeing  how  far  its 
claims  to  supplant  all  others  are  justified;  and  upon  such 
investigation  it  will  be  found  that  the  theory  is  not  mere- 
ly untrue,  but  that  it  is  without  definite  signification,  or, 
in  other  words,  nonsensical. 

It  is  generally  assumed  when  we  speak  of  the  principle 
of  utility,  or,  as  it  has  come  to  be  called,  utilitarianism, 
that  we  have  in  view  a  single,  consistent  theory  of  moral- 
ity ;  but  in  fact  there  are  embraced  under  the  one  name 
several  distinct  and  irreconcilable  theories.  These  grow 
respectively  out  of  the  several  different  meanings  of  the 
term ^  utility  ;  which,  though  apparently  simple  in  mean- 
ing, is  extremely  ambiguous.  For,  it  is  obvious,  the  term 
is  a  relative  one,  implying  some  man  or  men  whose  wel- 
fare is  promoted,  and  its  meaning  must  therefore  vary  ac- 
cording to  its  correlative. 

When  applied  to  a  single  individual,  the  meaning  of 
the  term  is  clear.  It  denotes  the  interest  or  welfare  of 
the  individual  referred  to.  When  used  with  reference  to 
a  class,  it  is  equally  clear,  properly  speaking,  that  it  de- 
notes the  interest  or  welfare  of  every  individual  of  the 
class.  For  to  say  that  anything  is  useful  to  two  or  more, 
or  any  number  of  men,  is  to  say  that  it  is  useful  to  each  of 
them.  If  this  be  not  the  case,  the  expression  is  inaccurate  ; 
and  we  should  say,  not  that  it  is  useful  to  the  class,  but 
that  it  is  useful  to  some,  or  most  of  the  individuals  com- 
posing it.  Hence,  to  say  that  anything  will  be  useful  to 
the  community,  or  to  mankind,  is  to  say,  if  we  speak  accu- 
rately, that  it  will  be  universally  useful,  —  that  is,  useful 
to  every  individual  of  the  community  or  race. 

These  are  the  only  definite  meanings  of  which  the  term 
is  susceptible,  and  hence  there  can  be  only  two  admissible 
expressions  of  the  principle  of  utility,  —  which  may  be 
called  respectively  the  theory  of  individual,  and  that  of 
universal  utility;  the  first  of  which  asserts  that  to  every 
individual  his  own  good  or  interest  is  the  only  test  of 
right  and  wrong ;  and  the  latter,  that  whatever  is  shown 
to  be  for  the  good  or  welfare  of  every  individual  of  the 
community  or  race  must  be  right ;  or,  in  a  negative  form, 
that  whatever  is  pernicious  or  contrary  to  the  welfare  of 
any  individual  cannot  be  right. 

This,  however,  is  not  the  theory  of  general  utility  ad- 
vocated by  Bentham   and  Austin  ;    which  is  something 


64 

altogether  different.  Properly  speaking,  indeed,  the  term 
general  utility  would  seem  to  denote  that  which  is  uni- 
versally useful ;  but  according  to  a  common  usage,  and 
therefore  allowable  in  familiar  speech,  it  is  also  used  to 
denote  only  that  which  is  useful  in  most  cases.  But  in 
this  sense  the  term  is  not  logically  serviceable,  for  its 
meaning  is  indefinite,  and  unsusceptible  of  precise  defi- 
nition, and  it  cannot  be  determined  what  is  the  propor- 
tion of  individuals  whose  welfare  is  to  be  considered, — 
whether  a  mere  majority,  or  three-fourths,  or  nine-tenths, 
or  more  or  less.  The  theory  is,  therefore,  as  we  have 
observed,  nonsensical,  or  without  definite  signification. 

Benlham  struggles  with  this  difficulty,  and  arrives  at 
two  different  solutions  of  the  problem,  both  evidently  un- 
tenable. One  of  these  is  based  upon  the  apparent  anal- 
ogy between  the  state  or  community,  and  the  natural 
man  ;  that  is,  he  conceives  the  state  as  an  actual  being, 
susceptible  like  a  man  to  pleasure  and  pain,  and  of  being 
compensated  for  pain  in  one  part  by  pleasure  in  another. 

"  That  which  is  conformable  to  the  utility  or  to  the  in- 
terest of  an  individual,"  he  says,  "is  that  which  tends  to 
augment  the  total  sum  of  his  happiness.  That  which  is 
conformable  to  the  utility  or  interest  of  the  community,  is 
that  which  tends  to  augment  the  total  sum  of  the  happi- 
ness of  the  individuals  who  compose  it."  Or,  as  Mr. 
Bain  states,  he  defines  utility  as  *'  the  tendency  of  actions 
to  promote  the  happiness  and  prevent  the  misery  of  the 
party  under  consideration;  which  party  is  usually  the 
community  in  which  one's  lot  is  cast."  But  Mr.  Bain's 
mode  of  stating  the  proposition  is  obviously  a  mere  at- 
tempt to  cover  up  the  difficulty  with  words;  for,  as  we 
have  observed,  there  cannot  be  such  a  thing  as  happiness 
or  welfare,  except  as  existing  in  actual,  sentient  beings ; 
and  there  cannot,  therefore,  be  a  happiness  or  welfare  of 
the  community  distinct  from  that  of  individuals. 

Bentham's  proposition,  viz:  that  the  welfare  or  happi- 
ness of  a  community  is  "  the  total  sum  of  happiness  of 
the  individuals  who  compose  it,"  is  a  little  less  indefinite, 
but  hardly  less  objectionable.  It,  in  effect,  regards  hap- 
piness in  the  abstract,  without  considering  in  whom  it 
may  exist,  or  the  proportions  in  which  it  may  be  shared. 
Accordingly,  he  gives  specific  rules  for  calculating  utility, 
which  are  the  same  in  the  case  of  a  community  as  in  that 
of  the  individual — the  process  being  to  calculate,  by  what 
he  calls  a  process  of  moral  arithmetic,  on  the  one  hand 


65 

all  the  pleasures,  and  on  the  other  all  the  pains,  which  a 
given  act  or  class  of  acts  may  have  a  tendency  to  pro- 
duce, .and  to  strike  a  balance  between  them.  Similarly 
in  the  case  of  the  state,  if  all  the  pleasures  are  experienced 
by  one  set  of  individuals  and  all  the  pains  by  another,  the 
rule  will  still  apply ;  and  if  the  pleasures  of  the  one  set 
are  greater  than  the  pains  of  the  other,  the  act  or  class  of 
acts  will  be  useful.  Hence,  it  may  even  happen,  consid 
ering  the  difference  of  men's  sensibility  to  pleasant  or  un- 
pleasant impressions,  that  the  pleasures  experienced  by  a 
minority  may  be  greater  than  the  pains  experienced  by  a 
majority ;  and  in  such  case  the  act  or  class  of  acts,  ac- 
cording to  the  definition,  will  be  useful  and  therefore 
right — a  theory  obviously  absurd,  but  so  consonant  to 
human  infirmity  as  to  be  unconsciously  very  generally 
acted  upon. 

This  is  the  theory  of  Bentham,  as  given  in  **  The  Theory 
of  Legislation."  He  seems,  however,  not  to  have  been 
satisfied  with  it ;  and  at  all  events  makes  another  effort 
to  solve  the  difficulty,  and  arrives  at  another  and  alto- 
gether different  solution.  This  is,  that  the  happiness  or 
interest  of  the  majority  must  govern — a  theory  already 
asserted  by  Hutcheson,  Beccarria,  and  Priestly,  the  last  of 
whom  he  says  "  was  the  first  (unless  it  was  Beccarria) 
who  taught  my  lips  to  pronounce  this  sacred  truth,  that 
the  greatest  happiness  of  the  greatest  number  is  the  foun- 
dation of  morals  and  legislation."  But  this  may  be  fairly 
called  an  execrable  maxim;  for  it  cannot  be  asserted  that 
the  advantage  of  any  number  of  men  is  a  sufficient  justifi- 
cation for  the  infliction  of  an  injury,  even  upon  one  inno- 
cent individual.  There  may  indeed  be  exceptional  cases, 
in  which  the  safety  of  the  state  or  of  a  community  may 
absolutely  require  the  sacrifice  of  the  individual,  and  it 
may  be  the  duty  of  the  individual  to  submit  to  this  sacri- 
fice, and  the  right  of  the  state  to  require  it ;  but  the  gen- 
eral principle  must  always  obtain,  that  every  man's  life 
and  person  are  his  owm,  and  cannot,  unless  by  virtue  of 
some  clearly  defined  right,  be  converted  to  the  use  of  an- 
other man,  or  of  any  number  of  men.  To  assert  that  any 
innocent  man's  property  or  his  person  may  be  rightfully 
violated,  or  any  hurt  done  to  him,  whenever  the  advantage 
of  an  undefined  majority  can  be  secured  thereby,  is^  a 
proposition  too  shocking  to  the  conscience  and  to  the  in- 
telligence of  mankind  to  require  discussion. 

§  2.     The  most  approved  exponent  of  the  doctrine  of 


66 

utility  in  modern  times  is  Mr.  Mill,  to  whose  views  we. 
have  already  briefly  referred.  As  we  have  seen,  he  repu- 
diates altogether  the  doctrine  of  individual  or  private 
utility  ;  and  hence,  consistently  enough,  allows  of  the  idea 
of  duty  and  even  of  the  most  supreme  self-devotion.  But 
a  still  more  singular  emendation  made  by  him  of  Ben- 
tham's  theory  is  the  following: 

*'That  first  of  judicial  virtues,  impartiality,  is  an  ob- 
ligation of  justice.  *  *  *  Society  should  treat  all 
equally  well  who  deserve  equally  well  of  it  *  *  * 
this  great  moral  duty  being  a  direct  emanation  from  the 
first  principles  of  morals.  "^  *  ^  It  is  involved  in  the 
very  meaning  of  utility,  or  the  greatest  .happiness  prin- 
ciple. That  principle  is  a  mere  form  of  words,  without 
rational  signification,  unless  one  person's  happiness,  sup- 
posed equal  in  degree,  ^  *  *"  is  counted  for  exactly 
as  much  as  another's.  These  conditions  being  supplied, 
Bentham's  dictum, '  Everybody  to  count  for  one,  nobody 
for  more  than  one,'  might  be  written  under  the  principle 
of  utility,  as  an  explanatory  commentary." 

But  this  gives  to  Bentham  credit  which  he  by  no 
means  deserves.  He  may,  indeed,  in  portions  of  his 
work,  have  illogically  made  use  of  this,  as  well  as  other 
familiar  principles,  but  it  does  not  form  a  part  of  his 
theory,  nor  is  it  consistent  with  it.  For,  according  to 
his  fundamental  principle,  nobody's  interest  is  counted 
except  that  of  the  individual  affected.  Nor  is  the  prop- 
osition consistent  even  with  the  theory  of  general  utility 
illegitimately  assumed  by  Bentham ;  for,  as  we  have 
seen,  the  two  forms  of  this  theory,,  as  stated  by  him  as- 
sert— the  one,  that  the  greatest  amount  of  happiness  is 
the  standard,  without  regard  to  the  individuals  whose  hap- 
piness is  affected;  and  the  other,  that  the  happiness  of 
the  majority  is  the  standard. 

If,  indeed,  this  jDrinciple  of  equality  of  value  in  the 
moral  and  jural  claims  of  men  can  be  assumed,  as  unques- 
tionably it  may  be,  then  we  have  no  further  use  of  the 
theory  of  general  utility.  For  this  principle,  as  has  been 
admirably  shown  by  Mr.  Spencer  and  others,  is  itself 
a  sufficient  foundation,  at  least,  for  the  theory  of  justice. 
Hence,  the  theory  of  Mill  cannot  properly  be  called,  as  it 
has  been,  even  "sublimated  Benthamism."  It  is,  in  fact, 
a  theory  altogether  different,  and  antagonistic  to  it. 

As  thus  amended,  the  theory  is  morally  unobjection- 
able ;  its  defect, — if  such  a  charge  may  be  made  against 


07 

so  celebrated  a  logician  as  the  author, — is  want  of  logic. 
Like  Bentham  and  Austin,  and  other  utilitarians,  Mill 
has  failed  to  perceive  that  the  tQviw ''^ general  utility''^ 
is  absolutely  without  definite  significance,  and,  therefore, 
cannot  serve  as  a  sufficient  premise  for  any  theory.  Ac- 
cordingly, he  uses  the  term  in  various  senses ;  in  one, 
which  I  have  quoted,  he  asserts  that  the  standard  is  *'  the 
greatest  amount  of  happiness  altogether,"  thus  seeming 
to  agree  with  Bentham,  in  his  first  statement  of  the 
theory ;  according  to  which  it  is  the  greatest  amount  of 
happiness  that  can  be  secured,  even  though  that  should 
be  of  the  minority ;  but  elsewliere  he  says,  '*  that  the 
utilitarian's  ideal  of  what  is  right  is,  not  the  agent's  own 
happiness,  but  that  of  all  concerned  "  ;  or,  in  other  words, 
*'  tlie  good  of  the  whole."  But  this  is  an  altogether  dif- 
ferent proposition,  not  only  from  that  of  individual,  but 
also  from  that  of  general  utility,  and  in  nowise  different 
from  what  is  admitted  by  all  moralists,  viz.:  that  utility, 
or  tendency  to  promote  the  happiness  of  mankind,  is,  if 
not  of  the  essence,  at  least  a  property  of  right,  and  there- 
fore universally  to  be  predicated  of  it ;  or,  to  state  the 
proposition  in  a  form  more  practically  useful,  that  no 
class  of  acts  which,  in  their  general  consequences  are  per- 
nicious, or  contrary  to  the  welfare  of  any  man,  can  be 
right.  In  this  negative  form,  the  principle  of  utility  is 
entirely  unobjectionable,  and  must  be  accepted  by  all. 

It  is,  therefore,  obvious  that  utilitarianism  is  merely 
another  instance  of  error  resulting  from  the  use  of  unde- 
fined, ambiguous,  and  nonsensical  terms;  and  our  obser- 
vations on  this  head  may  be  closed  by  adverting  to  the 
fact  that  this  is  true  with  regard  to  nearly  all  the  moral 
and  political  speculations  of  the  day,  and  by  the  further 
observation  that  the  pressing  need,  in  the  subject  we  are 
discussing,  as  well  as  in  others,  is,  not  so  much  the  ac- 
quisition of  new  knowledge,  as  to  get  rid  of  the  false 
semblance  of  knowledge  which  almost  wholly  usurps  the 
place  of  the  true  science,  and  thus  prevents  all  rational 
speculation. 


CHAPTER  VIII. 

OF  THE  TRUE  NATURE  OF  THE   LAW  AND  OF  RIGHTS. 

§  1.  In  the  preceding  chapters  of  this  work  our  atten- 
tion has  been  devoted  to  a  critical  examination  of  Austin's 
theory  of  jurisprudence,  with  a  view  of  observing  its 
inconsistencies,  and  the  absurd  consequences  involved  in 
it.  To  complete  our  view  of  the  subject,  the  remaining 
chapter  will  be  devoted  to  a  brief  statement  of  the  antag- 
onistic theory,  referred  to  in  our  introductory  chapter  as 
the  Common  Law  Doctrine,  and  elsewhere  as  the  Jural 
Theory  of  the  law  ;  and  to  a  cursory,  but  I  trust  sufficient, 
consideration  of  the  principal  arguments  for  and  against 
it. 

This  theory,  as  there  stated,  rests  upon  the  proposition 
that  it  is  the  function  of  government  to  establish  justice, 
or  to  secure  the  observance  of  rights  ;  and  from  this 
proposition, — if  we  define  the  law  as  including  all  the  rules 
and  principles  by  which  the  Courts  are  governed  in 
determining  controversies  between  men  as  to  their  mutual 
rights, — it  follows  that  justice,  or  right, — which,  as  we 
have  observed,  is  but  the  aggregate  of  the  principles  by 
which  rights  are  determined, — is  an  integral  part  of  the 
law ;  or,  more  specifically,  of  the  law  of  Private  Kight, 
(^Jus  Prwatnm  :)  which  constitutes  the  principal  or  suh- 
stantive  part  of  the  law,  and  the  only  part  that  it  is  here 
material  to  consider,  and  which  consists  wholly  of  the 
doctrine  of  rights,  and  that  of  actions. 

But  rights  also  constitute  one  of  the  principal  topics 
of  Morality,  and  Right  or  Justice,  one  of  the  principal 
departments  or  divisions  of  that  science.  Hence,  if  the 
terms  are  in  both  cases  used  in  the  same  sense,  it  follows 
that  the  doctrine  of  rights,  or  of  Right  or  Justice,  is  a 
province  common  at  once  to  the  Law  and  to  Morality  ; 
and,  as  is  well  observed  by  Mr.  Amos,  that  "  the  term 
rights  is  the  central  term  at  once  of  the  Science  of  Law, 
and  of  the  Science  of  Morality."  (The  Science  of  Law, 
88-89.) 

The  principal  question  involved  in  this  discussion  is, 
therefore,  to  determine  whether  the  rights  with  which  the 


69 


law  deals  are  rights  in  the  proper  sense,  and  therefore 
the  same  as  those  treated  of  in  Slorality,  or  whether — as 
is  claimed  by  the  legists, — they  are  something  of  an  essen- 
tially different  nature. 

The  hitter  proposition  has  been  considered  exhaustively, 
and  it  has  been  shown  that  the  use  of  the  term  rights,  and 
of  the  terms,  Right  or  Justice,  in  the  sense  attributed  to 
them  by  Austin  and  his  followers,  is  unwarranted  by  cor- 
rect usage,  and  that  they  stand  absolutely  alone  in  thus 
using  them.  It  is  now  proposed  to  sliow  affirmatively 
that  the  rights  treated  of  in  the  hiw  are  rights,  in  the 
proper  and  ordinary  sense  of  tlie  term,  and  the  identical 
rights  treated  of  by  moralists  ;  and,  hence, — as  above 
asserted, — that  Justice  or  Right  is,  in  the  same  sense,  at 
once  a  part  of  the  law  of  Private  Right,  and  a  department 
or  branch  of  Morality. 

The  arguments  for  this  proposition  will  be  drawn  (1) 
from  the  significance  of  the  terms,  right  and  rights,  and 
related  terms,  as  determined  by  uniform  and  approved 
usage,  and  from  the  authority  of  jurists  and  philosophers, 
and  of  the  law  itself  ;  (2)  from  the  historical  develop- 
ment of  the  law ;  (3)  from  an  actual  examination  of  the 
rights  recognized  in  the  law,  or,  as  they  are  called,  J^mc?- 
ical  rights ;  and  (4)  from  a  consideration  of  the  nature 
of  jurisprudence,  or  the  science  of  rights:  after  which,  in 
conclusion,  we  will  consider  the  principal  objections  that 
have  been  urged  against  this  view. 

§  2.  (I)  The  term,  a  right,  or  rights,  and  its  numerous 
related  terms, — such  as  jurisdiction,  judicial^  courts  of 
justice,  the  administration  of  justice,  equity,  good  con- 
science, reason,  etc., — all  of  which  imply  that  the  function 
of  government  is  to  2i(\.m\mstQV  justice,  or  to  cause  rights 
to  be  observed,  are  obviously  used  in  the  law  in  their 
ordinary  and  proper  sense,  as  may  be  verified  by  refer- 
ence to  the  following  passages  taken  from  approved 
authorities,  and  which  might  be  indefinitely  added  to. 

"  The  Common  Law  of  England  is  the  common  rule  for 
administering  justice  within  this  kingdom,  and  it  asserts 
the  royal  prerogatives  as  well  as  the  rights  and  liberties  of 
the  subject";^  hence,  jurisdiction  is  defined  as  "an 
authority  or  power  which  a  man  has  to  do  justice  in  causes 
of  complaint  brought  before  him."^ 

"  It  is  to  be  observed,"  says  Coke,  ''  that  the  Common 

iSir  Mattbew  Hale,  cited,  Jacob's  Law  Die,  "  Common  Law." 
2Id.  "Jurisdiction." 
6 


70 

Law  of  England  is  sometimes  called  rislit,  sometimes 
common  right,  sometimes  coimnmds  justitia.  In  the  Great 
Charter  the  Common  Law  is  called  Right.  Nulli  vendimus, 
nulli  negahimus,  aut  differemiis  justltia?n  vel  rectum.^' 
*'  In  the  statute  Wm.  I.,  C.  1,  it  is  called  Common  Droit. 
En  j)ri7nes  voet  le  roy  et  commande  *  *  *  que  com- 
mon droit  soit  fait  a  touts^  aussi  bien  a  poers  come  aiix 
riches,  sauns  regard  a  mdlay.  *  *  *  And  Fleta 
saith  :  "  Quod  communis  justitia  singulis  puriter  exhih- 
■eatury  And  all  the  commissions  and  charters  for  execu- 
tion of  justice  axQ  facturi  quod  ad  justitiam  2)ertinet  se- 
cundem  legem  et  consuetudinem  Anglim,''^^ 

So  it  is  explicitly  asserted  by  Coke,  that  "  the  law  of 
Mature  is  part  of  the  law  of  England"  ;  and  "this,"  he 
says,  "  appeareth  plainly  and  plentifully  in  our  books. "^ 

And  the  same  proposition  is  explicitly  asserted  and  ex- 
plained at  length  by  Fortescue,  in  the  "  De  Laudibus  Le- 
gum  Anglife,"  and  by  St.  Germain  in  "Doctor  and  Stu- 
dent." 

The  notion  is  also  expressed  by  Coke  in  his  celebrated 
saying  that,  "  nihil  quod  est  contra  rationem  est  licitum^^ 
and  that  ''  the  common  law  itself  is  nothing  else  but  rea- 
son "  (Co.-Lit,  976);  and  in  the  more  accurate  definition 
of  Lord  Mansfield,  that  the  law  is  nothing  else  but  reason 
modified  by  habit  and  authority;  and  in  the  assertion  of 
Burke,  that  it  is  **  the  collected  reason  of  ages,  combining 
the  principles  of  original  justice  with  the  infinite  variety  of 
human  affairs  "  ;  and  generally  in  all  except  the  most  re- 
■cent  of  the  text-books  and  reports.^ 

The  notion  of  natural  rights  and  justice,  and  that  their 
observance  is  the  end  of  the  law,  is  thus  embodied  in  our 
most  familiar  language,  and  has  come  to  be  a  common 
heritage  of  the  race,  of  which  it  cannot  be  robbed  by  all 
the  assaults  of  a  vain  philosophy.  It  has,  in  fact,  consti- 
tuted the  animating  principle  of  progress  in  human  civil- 
ization. Whatever  has  been  gained  in  rational  liberty, 
in  a  better  political  organization,  and  in  the  greater  se- 
curity of  life,  liberty  and  property,  is,  in  fact,  due  to 
those  who,  by  Bentham,  are  contemptuously  called  "  fa- 
natics armed  with  natural  rights,"  and  by  Austin,  "  igno- 

iCo.-Lit.  142a. 

2Calvin's  Case,  7  Coke's  R.  12,  13. 

^Bonbam's  Case,  8,  Coke's  Rep.  118  ;  Hobart,  87  ;  Bishop's  First  Book 
of  the  Law,  C.  9,  §  90;  Forbes  vs.  Cochvam,  2  Bam.  &  Cres.  471;  Coggs 
vs.  Bernard,  2  Lo.  Raym.  911;  Pasley  vs.  Freeman,  3  T.  R  62;  Millar 
vs.  Taylor,  4  Burr.  2312;  O'Mychum  vs.  Barker,  1  Atk.  46;  Davis  is. 
Rowell  Wills,  48-51;  Lyle  vs.  Richards,  9  G.  &  R.  351, 


71 

rant  and  brawling  fanatics,  who  stun  you  with  their 
pother  about  liberty."  For  the  principle  of  justice, 
though  suppressed  by  the  prevailing  philosophy,  is,  in 
fact,  not  only  the  fundamental  truth  of  jural,  and  of  all 
political,  and  social  science,  but  also  the  practical  weapon 
by  which  men  have  fought  out  their  political  emancipa- 
tion. 

§  3.  (2)1  The  nature  of  the  development  of  the  law  has 
been  much  misunderstood  by  the  more  recent  English 
jurists;  and  this  misunderstanding,  like  others  to  which 
I  have  alluded,  is  also  the  result  of  a  failure  to  distinguish 
between  the  different  parts  of  the  law.  Right  or  justice 
is  not  susceptible  of  development  in  any  other  sense  than 
in  the  sense  in  which  the  truths  of  mathematics  and  other 
sciences  may  be  said  to  be  developed  ;  that  is  to  say,  they 
may  be  gradually  discovered,  but  the  development  is  in 
our  knowledge  only.  But  it  is  otherwise  with  the  law  of 
actions,  which  is,  in  fact,  gradually  developed,  in  the 
sense  that  it  is  actually  brought  into  being,  llence,  con- 
fining our  attention  to  the  Law  of  Private  Right,  the  his- 
torical development  of  the  law  consists  wholly  in  the  de- 
velopment, not  of  rights,  but  of  actions,  or  means  of 
enforcing  rights.  For  right  itself,  or  justice,  is  the  same 
at  one  period  as  another,  and  is  at  all  times  an  integral 
part  of  the  law.^ 

In  its  essential  features  the  development  of  the  law  has 
been  the  same  in  the  case  of  our  own,  and  in  that  of  the 
Roman  law ;  and  from  this,  and  our  knowledge  of  human 
nature  generally,  it  may  be  assumed  that  it  is  governed 
by  general  laws,  which,  under  similar  circumstances,  will 
always  produce  essentially  identical  results. 

These  results  may  be  stated  with  substantial  accuracy 
as  follows : 

Every  system  of  positive  law  commences  with  the  mere 
establishment  of  a  jurisdiction,  or   power  to  administer 

iThe  subiect  of  this  and  the  following  sections  is  treated  of  more  at 
length  in  ''  Right  and  Law,"  and  in  "  The  Law  of  Private  Right," 
cited  svpra  ;  to  which  the  reader,  if  he  desires  to  pursue  the  subject 
further,  is  requested  to  refer. 

2"  The  principles  of  natural  right  (natiir  alia  jura,)  \vhich  are  observed 
equally  by  all  peoples,  being  established,  as  it  were,  by  Divine  Provi- 
dence, remain  always  firm  and  immutable;  but  those  which  each  state 
has  established  for  itself  are  often  changed,  either  by  tacit  consent  of 
the  people  or  by  tome  later  law."    (Pandects.) 

And  to  the  same  effect  it  is  said  of  our  own  law  by  Coke  : 

"  Leges  naturse,"  {natnralia  jura,)  "  perfect issimse  sunt  et  immutabiles ; 
hnmaiii  vero juris  conditio  semper  in  infinitum  currit,  et  nihil  est  in  eo  quod 
perpetuo  stare possit;  leges  humanse  nascuntur  vivunt  et  moriuntur."  Cal- 
vin's Case,  7  Coke's  R.  25. 


72 

justice ;  which  is  at  first  generally  vested  in  a  king  or 
monarch,  but  afterwards  delegated  to  regular  courts  for 
the  administration  of  justice.  At  this  period  justice,  or 
Natural  Right,  constitutes  the  whole  law  of  the  state. 

From  this  beginning,  the  law  of  private  right,  or  rather 
the  law  of  actions, — which,  as  we  have  observed,  is  alone 
capable  of  development, — is  developed  by  the  courts,  in 
the  main  without  legislative  interference  ;  and  its  devel- 
opment,— with  the  exception  of  a  few  statutory  provis- 
ions,— is  the  result  of  the  exercise  oi  jurisdiction,  and  not 
of  legislative  power;  and  hence  the  law  of  private  right 
is  to  be  regarded  as  an  expression  of  the  judgment,  not 
of  the  will  of  the  state. 

The  exercise  of  jurisdiction, — ex  vi  tefmini, — consists 
merely  in  devising  appropriate  remedies,  or  actions  for 
recognized  rights ;  and  in  the  performance  of  this  func- 
tion the  Courts,  and  more  especially  the  Courts  of  Equity, 
have,  in  the  main,  avowedly  governed  themselves,  in  the 
determination  of  cases,  by  the  principles  of  justice,  or  nat- 
ural right.  Hence,  every  step  in  the  development  of  the 
law,  (if  we  leave  out  of  view  the  comparatively  limited 
influence  of  statutory  legislation,)  has  consisted  in  the  ap- 
plication, or  attempted  application,  of  principles  of  natu- 
ral right  to  cases  actually  presented ;  and  hence,  in  the- 
ory, and,  so  far  forth  as  the  functions  of  the  Courts  have 
been  well  performed,  in  fact  also,  the  law^  of  actions  is 
but  a  practical  application  of  the  principles  of  right. 

The  fact  that  the  principles  of  natural  right,  or  most  of 
its  principles,  are,  and  for  a  long  time  have  been,  recog- 
nized by  the  Courts,  and  some,  of  course,  by  the  Legisla- 
ture, is  not  inconsistent  with  the  proposition  that  they  still 
continue  to  be  principles  of  natural  right ;  but,  on  the 
contrary,  constitutes  the  most  conclusive  proof  of  their 
truth.  For  it  may  be  asserted  as  a  universal  proposition, 
that  in  a  progressive  civilization  no  principal  can  endure 
in  the  law  if  inconsistent  with  justice.  Thus,  the  jus  ci- 
vile of  every  system,  that  is,  the  portion  of  the  law  that 
is  arbitrary  and  peculiar,  though  commonly  supposed  by 
modern  English  jurists  to  be  immutable,  except  by  legis- 
Intion,  is,  in  fact,  as  Coke  asserts,  the  mutable  and  tempo- 
rary part  of  the  law  ;  while  the  part  of  it  which  consists 
in  Right  or  Justice  is  alone  permanent  and  immutable. 
Hence,  if  we  compare  the  law  as  it  existed  in  the  time  of 
Edward  I.,  or  even  at  a  much  later  period,  with  the  law 
as  it  exists  today,  or,  if  we  compare  the  law, — as  opposed 


73 

to  Equity, — as  it  was  at  the  time  of  Blackstone,  with  the 
present  law,  we  find  there  is  hardly  anything  common  be- 
tween them  except  the  principles  of  natural  right  recoor- 
nized  from  the  earliest  times,  throughout  all  stages  of  the 
law,  to  the  present  day. 

The  process  of  development  has  been  the  same  in  the 
Roman  as  in  our  own  law,  but  the  former  has  come  to  an 
end,  while  ours  remains,  it  is  hoped,  to  be  the  subject  of 
a  further  and  higher  development.  Such  development, 
however,  will  not  consist  in  contemning  and  rejecting  the 
methods  by  which  such  noble  results  were  obtained  by  the 
Koman  lawyers  ;  or  in  rejecting  the  moral  convictions  and 
moral  faith,  to  which  is  owing  the  present  European  civ- 
ilization ;  nor  in  the  attempt  to  substitute  for  the  princi- 
ples of  natural  right  the  arbitrary  enactments  of  codes : 
but  in  more  consistently  recognizing  the  sacredness  of 
rights  and  of  justice,  and  in  the  logical  development  of  the 
principles  of  Natural  Right,  as  established  in  the  common 
moral  convictions  or  conscience  of  the  civilized  world. 

§  4.  (3)  A  mere  enumeration  of  the  rights  recognized  in 
the  law  will  be  sufficient  to  show  that  they  are  none  other 
than  those  natural  or  moral  rights, — so  despised  by  the 
legists, — which  are  recognized  universally  by  the  people. 

These  rights  are  of  two  ^^eneral  classes,  namely,  rights 
of  ownership  and  rights  of  obligation.  Under  the  former 
head  are  included  the  right  of  property,  the  right  of  per- 
sonal liberty  or  of  self-ownership,  and  the  right  of  husband 
in  wife,  and  parent  in  child,  etc.,  and  vice  versa;  under 
the  latter,  the  right  to  the  performance  of  contracts,  the 
right  to  restitution  or  compensation  for  injuries,  and  cer- 
tain rights  which  arise  ex  7ne7'o  jure,  mthout  the  interven- 
tion of  contract  or  delict, — as,  for  example,  the  right  of 
salvage  in  case  of  a  derelict  ship.  The  last  class  is  a  lim- 
ited one,  and  may  be  left  out  of  view  in  the  present  con- 
nection ;  it  is  mentioned  merely  to  make  our  enumeration 
complete. 

The  above  classification  covers  all  rights,  juridical  or 
non-juridical,  and  it  is  evident  that  they  are  all  recognized 
at  once  by  the  law  and  by  the  people  generally.  Hence, 
it  is  clear,  a  juridical  right  is  nothing  more  than  a  natural 
or  moral  right,  with  an  action  or  remedy  provided  for  it 
by  law  ;  and  that  the  law  itself,  "  in  principle  at  least,"  is 
merely  **  justice  armed  with  force."  (Cousin,  The  True, 
the  Beautiful,  and  the  Good,  Lecture  15.) 

These  rights  are  recognized  in  all  systems  of  law,  and  in 


74 

all  civilized  countries  they  are  efficiently  protected ;  and, 
in  fact,  the  civilization  of  every  country  is  to  be  judged  by 
the  more  or  less  effectual  manner  in  which  this  is  the  case. 
Hence,  juridical  rights  are  obviously  the  snme  throughout 
the  civilized  world  ;  and  a  man  may  travel  anywhere  with- 
out finding  that  he  has  a  different  set  of  rights  in  one 
country  from  what  he  has  in  another.  Everywhere,  for 
instance,  he  will  find  his  right  to  his  watch,  to  his  personal 
apparel  or  other  property,  to  the  repayment  of  a  loan,  or 
to  the  performance  of  any  other  contract,  or  to  restitution 
or  compensation  for  injury, — in  short,  nearly  every  right 
he  has  at  home  equally  recognized  and  enforced. 

Hence,  it  is  evident,  in  every  country  the  doctrine  of 
rights  is  part  of  the  law  of  private  right,  and  this  part  of 
the  law  is  everywhere  the  same.  And  thus  far  the  noble 
prophecy  of  Cicero  is  in  fact  realized  :  "  Non  erit  alia  lex 
Momm^  alia  Athenis ;  alia,  7iunc,  alia  posthac ;  sed  et 
apud  omnes  gentes,  et  oinnia  tempora  una  eademque  lex 
ohtinehit.^^ 

§  5.  (4)  Jurisprudence  we  have  defined  as  the  Science, 
or,  more  accurately,  the  Science  and  the  Art  of  Justice,  or 
of  Rights.  It  is  its  f  undamenta  characteristic  that  it  deals, 
not  with  actualy  but  with  rightful  powers,  or  rights  ;  and 
that  its  fundamental  problem  is  to  determine,  not  the  his- 
torical question  as  to  what  powers  men,  either  as  individ- 
uals, or  collectively  as  the  state,  may  actually  have,  at 
any  particular  time  or  place,  but  the  theoretical  question 
as  to  the  powers  which  either  individuals  or  the  state 
ought  to  have,  either  in  general,  or  under  given  circum- 
stances of  time  and  place. 

This,  with  reference  to  theoretical  jurisprudence,  is 
sufficiently  obvious ;  but  the  proposition  is  equally  true, 
though  not  so  apparent,  with  reference  to  practical  juris- 
prudence. For  no  fact  is  more  certain,  though  obscured 
in  this  country  and  England  by  the  prevailing  philosphy, 
than  that  it  is  the  function  or  duty  of  the  state  to  admin- 
ister, or,  (in  the  language  of  the  Constitution  of  the  United 
States)  to  '*  establish  justice,"  and  that  this  duty,  and 
consequently  justice  or  natural  right,  are  universally  rec- 
ognized by  civilized  states. 

That  this  duty  should  be  imperfectly  realized  is  simply 
due  to  the  necessary  and  inevitable  imperfection  of  all 
human  instrumentality  ;  and  from  this  fact  arise  numerous 
difficulties  and  apparent  objections,  which  will  hereafter 
be  considered.     But,  for  the  present,  we  will  assume  the 


75 

view  of  the  nature  of  jurisprudence  above  given  to  be  cor- 
rect, and  will  proceed  to  show  that  it  is  confirmed  by  a 
more  detailed  examination  of  the  subject. 

As  the  term  "a  right  "  includes  in  its  signification,  or 
connotes,  the  idea  of  rightness,  it  would  seem  to  be  nec- 
essary in  order  to  render  our  definition  of  rights  complete, 
to  define  the  adjective  ''right/'  or  the  term  "right,'*  as 
used  to  denote  a  quality  ;  but  to  do  this  would  involve  the 
solution  of  the  metaphysical  problem  as  to  the  nature  of 
right  and  duty, — a  question  about  which  theories  widely 
differ,  and  which,  in  the  present  state  of  ethical  science, 
cannot,  perhaps,  be  satisfactorily  solved  ;  and  which  is, 
in  fact,  the  rock  upon  which  the  English  jurists  have 
been  wrecked.  But  this,  indeed,  is  a  problem  which  it  is 
unnecessary  for  us  to  consider;  for  it  is  manifestly  indif- 
ferent what  theory  be  adopted,  provided  only  that  it 
asserts  the  reality  of  moral  distinctions. 

It  may,  however,  be  fairly  asked :  By  what  standard 
or  test  are  right  and  wrong  to  be  judged  ?  And  this  is  a 
question  that  must  be  answered.  The  answer  to  it  is. 
that  there  are,  in  fact,  two  standards,  intimately  related, 
to  each  other,  but  which  yet  must  be  distinguished ; 
namely,  the  practical,  and  the  theoretical  standard, — the 
former  being  the  standard  by  which  our  conduct,  in  mat- 
ters affecting  others,  is  to  be  governed  ;  the  latter,  the 
standard  by  which  our  judgments  are  to  be  formed. 

In  matters  that  concern  ourselves  alone,  these  two 
standards  coincide ;  for  to  every  man  the  practical  test 
of  right  and  wrong  must  be  his  own  conscience,  or  moral 
convictions.  But  in  matters  of  common  concern  it  is 
otherwise,  and  for  such  cases  another  standard  must  be 
sought  ;  and  this  can  be  no  other  than  the  common  moral 
convictions,  or  general  conscience  of  the  people. 

The  nature  of  this  consensus  of  moral  conviction,  or 
general  conscience  of  the  people,  the  method  of  its  gene- 
sis, its  rightful  authority,  and  the  instrumentality  by  which 
it  is  enforced, —  which  is  public  opinion, — is  a  subject  of 
fundamental  importance  in  jurisprudence,  and  in  politics 
generally,  but  is  too  extensive  to  permit  of  discussion  here. 
But  it  may  be  asserted,  as  a  fact  which  the  reader  can 
verify  for  himself,  that  this  general  conscience  of  civil- 
ized men,  or,  in  other  words,  positive  morality,  ought  to 
be,  and,  in  fact,  ultimately  and  in  the  long  run  is,  the 
paramount  predominating  political  force  in  the  civilized 
world,  and  that  it  is  this  that  makes  civilization  possible  ; 


76 

and  also  that  the  superior  development  of  this  force  in 
modern  civilization  constitutes  the  essential  difference  by 
which  it  is  to  be  distinguished  from  that  of  the  ancient 
world,  and  other  less  advanced  civilizations. 

Nor  can  it  be  doubted,  either  that  this  is,  or  that  it 
ought  to  be,  the  practical  test  or  standard,  in  all  matters 
of  common  concern  ;  and  this  for  three  reasons.  For, 
first,  the  positive  morality  of  the  present  age  is  the  result 
of  the  never-ending  struggle  of  mankind  to  realize  theo- 
retical morality, — a  struggle  to  which,  from  the  begin- 
ning of  history,  tlie  highest  intellect  and  conscience  of  the 
race  have  been  consecrated, — and  it  therefore  carries  with 
it  the  strongest  presumption  of  its  truth  ;  secondly,  there 
is  no  alternative  between  the  acceptance  of  this  standard, 
and  submission  to  arbitrary  power,  and  hence  free  gov- 
ernment is  possible  only  to  the  extent  that  this  general 
conscience  is  developed  ;  and  thirdly,  men,  as  it  were  by 
some  instinct  of  their  nature,  in  fact  accept  and  submit  to 
this  test  as  the  true  standard  of  practical  morality;  for, 
as  is  well  observed  by  Mill,  "the  customary  morality, — 
that  which  education  and  opinion  have  consecrated, — is 
the  only  one  that  presents  itself  to  the  mind  with  the  feel- 
ing of  being,  in  itself,  obligatory."^ 

It  is,  however,  evident,  in  view  of  the  difference  in  the 
morality  of  different  peoples  and  ages,  and  of  different 
classes  and  individuals  in  the  same  age  and  country, — a 
difference  that  really  exists,  though  greatly  exaggerated, 
— that  positive  morality  cannot  be  accepted  as  infallible  ; 
and  for  this  the  reason  is  very  apparent.  Morality  de- 
pends upon  a  few  fundamental  principles,  from  which  its 
subordinate  principles  and  rules  may  be  logically  de- 
duced ;  but,  as  Hobbes  observes,  the  generality  of  men 
are  so  far  from  being  capable  of  consistently  applying  the 
rules  of  logic,  "  that  they  know  not  what  it  is."  Hence, 
while  all  men  reason  to  a  certain  extent,  they  do  not 
reason  consistently  ;  and  thus,  in  practical  matters,  their 
only  safe  guide  is  experience  ;  by  which  their  notions  are 
constantly  corrected.  Thus,  in  the  main,  in  practical 
results,  positive  coincides  with  theoretical  morality  ;  but 
it  differs  from  it  in  this,  that  it  consists  of  rules  rather 
than  of  principles ;  and  that  these  rules  are  deduced,  not 
by  accurate  logical  deduction  from  principles,  but  by  a 
rough  kind  of  induction  or  experiment.  From  which  it 
results  that  the  rules  themselves  are  not  accurately  formu- 
lUtilitarianism,  Ch.  3,  pp.  38  39. 


77 

lated,  but  are  made  to  conform  to  truth  only  by  the  aid 
of  numerous  exceptions,  and  hence  are  logically  unser- 
viceable. On  the  other  hand,  scientific  morality  accepts 
no  proposition  except  as  universally  true,  both  immedi- 
ately and  in  all  its  logical  consequences,  and  admits  no 
conclusions  except  such  as  can  be  rigidly  demonstrated 
from  the  principles  assumed.  It  is,  theretore,  a  true  de- 
ductive science,  as  certain  in  its  method  and  in  its  results 
as  Geometry,  or,  to  take  a  more  nearly  related  instance, 
Political  Economy. 

It  is,  however,  always  to  be  remembered  that  the  prin- 
ciples of  scientific  morality,  though  conclusive  on  the 
conscience  of  him  who  is  convinced,  cannot  become  prac- 
tically operative  as  a  common  rule  or  standard  of  right 
and  wrong,  until  they  meet  with  general  acceptance,  and 
become  established  in  the  general  conscience,  or  common 
moral  convictions  of  the  people.  And  hence,  the  practi- 
cal end  of  scientific  jurisprudence,  in  relation  to  matters 
of  common  concern,  is  to  enlighten  the  general  con- 
science, and  to  correct  and  reform  the  moral  convictions 
of  mankind.  To  use  the  striking  metaphor  of  Pindar, 
Nomos  alone  is  King,  and  the  function  of  Philosophy  is 
only  to  advise. 

Of  the  possibility  of  a  scientific  morality  there  cannot 
be  any  reasonable  doubt ;  and  I  therefore  say,  with  Locke : 
*'  Confident  I  am  that  if  men  would,  in  the  same  method 
and  with  the  same  indifferency,  search  after  moral  as 
they  do  after  mathematical  truths,  they  would  find  them 
to  have  a  stronger  connection  one  with  another,  and  a 
more  necessary  consequence  from  our  clear  and  distinct 
ideas,  and  to  come  nearer  perfect  demonstration,  than  is 
commonly  imagined."  And  this  is  peculiarly  and  in  the 
highest  degree  true  of  Jurisprudence,  or  the  Science  of 
Rights.  For  this  science  rests  upon  a  few  simple  funda- 
mental principles,  about  which  there  is  not,  and  cannot  be, 
any  dispute. 

Of  these  the  principal  are  the  following: 

(1)  The  first  is  the  conclusion  reached  in  our  review 
of  Hobbes'  theory  of  Rights,  to  which,  in  order  to  avoid 
repetition,  the  reader  is  requested  to  turn :  it  is,  that  the 
rightful  or  jural  liberty  of  the  individual  is  limited,  and 
limited  only,  by  the  rights  of  other  individuals  or  the 
State. 

(2)  To  this  is  to  be  added  the  obvious  principle,  that 
there  is  ahcays  a  presumption  in  favor  of  liberty ^  and, 


78 

hence,  where  a  right  is  asserted,  either  in  an  individual 
or  in  the  /State,  that  derogates  from  the  liberty  oj'  another, 
the  hurden  of  ][)roof  is  on  him  who  asserts  the  existence  of 
the  right. 

(3)  From  this  it  follows  that  the  existence  of  a  right 
in  any  one,  derogating  from  the  liberty  of  another,  cannot 
be  affirmed,  unless  it  can  be  equally  affirmed  of  all  others 
standing  in  similar  jural  relations  ;  for  the  burden  of 
proof  rests  upon  him  who  asserts  the  right,  and,  accord- 
ing to  the  hypothesis,  no  reason  can  be  assigned  why 
such  a  right  should  exist  in  one,  which  would  not,  in  a 
like  case,  exist  in  another. 

Or,  the  proposition  may  be  otherwise  stated,  by  saying 
that  the  jural  liberty  of  all  men,  in  the  same  case,  is 
equal, — meaning  by  the  term,  "  the  same  case,^'  a  similar- 
ity of  all  circumstances  material  to  the  question  of  right. 

(4)  It  is  an  obvious  consequence  from  the  nature  of 
aright,  that  onewho  has  been  unjustly  deprived  of  its  ex- 
ercise shoidd  be  restored  to  its  enjoyment ;  and  it  seems 
equally  obvious,  that  ichere  restitution  in  hnd  is  imprac- 
ticable, restitution  in  value,  or  comiJensation,  should  be 
made. 

(5)  To  the  above  is  to  be  added  the  principle  of  util- 
ity, in  the  negative  form,  in  which  it  has  been  stated,  viz, 
that  whatever  can  be  shoion  to  be,  in  its  general  conse- 
quences, pernicious  or  detrimental  to  mankind,  is  wrong. 

This  principle  is  embodied,  under  the  name  of  the  ar- 
gumentum  ab  inconvenienti,  in  one  of  the  fundamental 
maxims  of  our  law  ;  and  there  are  few  principles  more  fre- 
quently referred  to  and  relied  upon  by  jurists  than  this. 
The  maxim,  as  given  by  Coke,  is  Argumentum  ab  incon- 
venienti plurimum  valet  in  lege ;  and  he  adds  :  "  The 
law,  that  is,  the  perfection  of  reason,  cannot  suffer  any- 
thing that  is  inconvenient;  and  therefore  he  says  :  "  Nihil 
quod  est  inconveniens  est  lictiwi  "  ;  and  that  "  judges  are 
to  judge  of  inconveniences  as  of  things  unlawful." 

(6)  But  in  considering  the  question  of  inconvenience, 
regard  must  be  had,  not  to  particidar,  but  to  general 
consequences  ;  or,  in  other  words,  not  to  the  effect  of  the 
decision  in  the  particular  case  under  consideration,  but 
to  its  effect  as  a  precedent  or  ride.  For  what  is  right  or 
wrong,  just  or  unjust,  in  any  case  must  necessarily  be  so 
in  other  like  cases  ;  and  hence  right,  as  well  as  morality 
generally,  must  consist  of  general  rules  applying  to  all 
cases  of  the  same  class.     This  is  insisted  upon  by  all  mor- 


79 

alists,  and  is  but  a  statement  of  Kant's  Categorical  Im- 
perative. 

All  of  the  above  principles  are,  in  fact,  assumed  in  our 
law,  and  also  in  the  Roman  law  ;  and  the  doctrine  of 
Rights,  as  established  in  both  systems,  and  in  all  systems, 
is,  in  the  main,  deduced  from  them.^ 

There  does  not  seem  to  be  any  room  for  difference  of 
opinion  with  regard  to  these  principles ;  and  hence  all 
disagreement,  as  to  the  subordinate  principles  of  right, 
must  be  regarded  as  resulting  wholly  from  defects  in 
the  logic  of  one,  or  the  other,  or  both,  of  the  parties  dif- 
fering. If  jurists,  instead  of  losing  themselves  in  meta- 
physical abstractions  as  to  the  nature  of  moral  distinctions, 
would  accept,  as  sufficiently  verified,  the  fundamental 
principles  of  justice,  assumed  in  all  systems  of  law,  and 
would  address  themselves  to  the  task  of  applying  to  them 
the  logical  method,  and  of  thus  reducing  to  logical  con- 
sistency the  received  principles  of  right,  which  have  been 
with  more  or  less  consistency  derived  from  these  funda- 
mental principles,  it  cannot  be  doubted  that  a  substanti- 
ally perfect  unanimity  could  be  reached,  or  that  the  law 
would  thus  be  perfected.  But,  unfortunately,  it  is  one 
of  the  worst  vices  of  the  legal  theory,  that  it  seeks  to 
banish  from  the  law  Logic,  or  Reason,  as  well  as  Justice. 

§  6.  There  are  numerous,  and  apparently  formidable 
objections  to  the  above  views,  as  to  the  nature  of  the 
law  and  of  jurisprudence ;  but  these  are  apparent  only, 
and  a  consideration  of  them  will  serve  rather  to  confirm 
our  theory  than  to  raise  any  doubt  as  to  its  correctness. 

(1)  Until  comparatively  recent  times  the  close  connec- 
tion, or  rather,  to  the  extent  explained  above,  the  identity, 
of  morality  with  the  law  was  generally  recognized  by  ju- 
rists; who  accordingly  regarded  the  one,  as  well  as  the 
other,  as  belonging  to  their  province,  and  were  equally 
familiar  with  both.  But  this,  unfortunately,  is  no  longer 
true,  at  least  in  England  ;  for,  in  fact,  so  far  as  we  may 
judge  from  their  published  utterances,  there  is  no  other 
class  of  men  who  care  or  know  so  little  about  Moral 
Science  as  the  modern  English  jurists ;  for,  with  regard 
to  it,  they  do  not  merely  participate  in  the  general  disre- 
gard and' neglect  into  which  it  has  fallen  with  other  peo- 

1 1  Lave  elsewhere  attempted  to  show  this  in  detail.  Right  and  Law| 
Book  I  ;  The  Law  of  Private  Right,  Part  III. 

It  has  also,  as  we  have  observed,  been  shown,  on  the  whole  success- 
fully, by  Herbert  Spencer,  in  "  Social  Statistics,'  and  in  "Justice"  ; 
and  by  Kant  in  the  "  Philosophy  of  Right. " 


80 

pie,  but  regard  It  with  affirmative  dislike^  as  a  delusion 
peculiarly  pernicious  to  jurisprudence,  and  as  Indicating 
certain  tendencies  of  human  nature,  which,  like  original 
sin,  must  be  rooted  out,  before  jural  or  political  salvation 
can  be  hoped  for.  Hence  has  originated  the  feeling  that 
there  Is  some  great  and  mysterious  danger  to  be  appre- 
hended from  admitting  that  the  law  has  any  connection 
with  justice,  or  morality. 

But  this  objection  Is  obviously  based  on  the  failure  to 
apprehend,  or  to  observe,  the  essential  distinction  between 
justice,  and  the  rest  of  morality.  The  hiw  does  not  pre- 
tend to  enforce  morality,  generally,  but  to  enforce  that 
part  of  it  only  which  morality  demands  shall  be  enforced, 
namely,  justice  or  right.  With  the  duties  of  charity  and 
benevolence  generally  the  State  does  not, — or,  at  least, 
need  not, — concern  itself ;  but  the  observance  of  justice  Is 
at  once  the  end  of  government,  and  the  condition  of  Its 
permanence. 

(2)  A  more  serious  objection  is  that  the  law  of  pri- 
vate right,  and  even  the  part  of  It  that  treats  of  rights,  is, 
to  some  extent,  made  up  of  laws  and  statutes,  and,  to  a 
still  larger  extent,  of  customs ;  and  there  Is  an  apparent 
difficulty  In  reconciling  with  our  theory  the  existence  of 
these  elements  ;  of  which  the  one  Is  accidental  In  its  na- 
ture, and  the  other  arbitrary. 

There  Is,  indeed,  no  difficulty  In  reconciling  the  co-ex- 
istence of  these  three  elements  in  the  law,  if  we  regard 
them  simply  as  co-ordinate :  but  our  theory  asserts  the 
paramount  authority  of  justice  or  right  In  that  part  of  the 
law  of  private  right  which  treats  of  rights ;  and  that 
neither  statutes  nor  customs  are  co-ordinate  and  inde- 
pendent parts  of  right ;  and  this  proposition  is  apparently 
more  difficult  to  accept. 

The  objection,  however,  is  more  apparent  than  real. 
Laws  or  statutes  are  mere  acts  of  men,  differing  from 
other  men  only  in  being  clothed  with  the  power  or  right 
of  legislation.  Generically,  they  are  of  essentially  the 
same  nature  as  contracts,  grants,  and  other  expressions  of 
human  will,  which,  like  laws,  are  valid  or  otherwise,  ac- 
cording to  the  right  of  the  party  making  them.     Hence, 

when  it  is  within  the  right  of  the  legislator  to  determine 

.  ... 

any  matter,  the  expression  of  Its  will  with  regard  to  it  is 

conclusive  ;  and  rights  may,  therefore,  originate  In  legisla- 
tion precisely  as  in  contract,  or  delict,  which  the  moralist, 
as  well  as  the  lawyer,  must  recognize.     But  if  the  law  Is 


81 

in  excess  of  the  rightful  power  of  the  legislator,  or,  to  use 
a  technical  expression,  is  ultra  vires,  it  has  no  more  force 
or  validity  than  the  act  of  a  private  individual,  which  is 
beyond  his  right. 

Hence,  the  existence  or  non-existence  of  rights  cannot 
be  predicated  from  the  mere  enactment  of  a  law,  but  their 
validity  must  depend  upon  the  existence  of  a  precedent 
right  in  the  state.  And  this  is  true,  whatever  theory  be 
adopted  as  to  the  extent  of  that  right.  For,  even  if  it 
could  be  assumed  that  the  right  of  the  state  is  absolute, 
this  could  only  be  on  the  ground  that  this  is  a  principle 
of  reason  or  natural  right;  and  a  right  created  by  a  law 
would  still  be  a  true  right,  or,  as  we  may  call  it, — precisely 
as  a  right  created  by  contract  or  grant — a  natural  right. 

Laws  or  statutes,  therefore,  do  not  enter  into  Right 
otherwise  than  as  mere  elements  in  the  problem  of  deter- 
mining rights ;  and  their  validity  and  effect  must  ulti- 
mately be  determined  by  some  principle  of  natural  right, 
even  if  it  should  be  none  other  than  that  the  right  or  power 
of  the  state  over  the  lives  and  fortunes  of  its  subjects  is 
absolute. 

With  regard  to  custom,  the  case,  mutatis  mutandis,  is 
the  same.  A  custom  may  or  may  not  give  rise  to  a  right, 
and  whether  it  does  so  or  not  is  a  question  to  be  determ- 
ined by  some  principle  of  reason  or  natural  right.  Thus 
obviously,  on  principles  of  natural  reason,  custom  enters 
into  and  forms  part  of  contracts,  and  is  also  an  important 
element  in  the  determination  of  rights  arising  from  de- 
lict ;  and  it  otherwise — and  this  is  its  most  important 
aspect, — often  has  the  force  of  law.  To  explain  why  this  is 
the  case  would  be  to  enter  into  too  large  a  subject  to  be 
treated  here,  but  it  is  admitted  that  custom,  in  order  to  be 
law,  must  be  reasonable,  and  its  effect,  therefore,  like  that 
of  laws,  is  to  be  determined  by  principles  of  reason  or  natu- 
ral right.  Hence,  like  laws  or  statutes,  customs  do  not  of 
themselves  originate  rights,  but  only  by  virtue  of  the 
principles  of  Right,  and  they  therefore  enter  into  the  de- 
termination of  rights  merely  as  elements  of  the  problem. 

These  observations  directly  apply  also  to  precedents  or 
judicial  decisions,  which,  though  entitled  to  respectful 
consideration  as  authority,  are  binding  only  when  they 
enter  into  the  general  habits  of  the  community,  and  thus 
become  established  by  custom. 

(3)  It  is  a  very  common  opinion,  and  if  true  a  serious 
objection  to  our  theory,  that  the  courts  do  not  and  cannot 


82 


determine  questions  of  right  by  the  principles  of  abstract 
justice  alone.  They  are  in  many  cases,  it  is  said,  pre- 
vented from  doing  so  by  some  positive  rule,  either  enacted 
by  the  legislature  or  established  by  precedent.  But  this 
objection,  like  others,  arises  from  the  habit  already  re- 
ferred to  of  looking  at  the  law  as  a  homogeneous  whole 
instead  of  distinguishing  its  separate  parts.  In  questions 
of  procedure,  the  judge  may  often  be  unable  to  do  jus- 
tice. He  may,  for  instance,  be  prevented  from  doing  it 
by  want  of  power  or  jurisdiction;  or,  he  may  even  be 
compelled,  or  at  least  judges  often  think  themselves  com- 
pelled, to  do  an  act  of  injustice, — though  this  is  more  gen- 
erally the  fault  of  the  judge  than  of  the  law.  So,  too,  in 
determining  the  practical  question  of  action  or  no  action, 
he  may  be  prevented  by  the  arbitrary  or  accidental  rules 
of  the  law  from  doing  justice.  But  in  determining  the 
question  of  Right,  neither  judicial  nor  legislative  authority 
is  of  any  weight  except  as  a  mere  element  in  the  problem, 
but  precisely  the  same  problem  is  presented  to  the  jurist 
as  to  the  moralist,  namely  :  in  view  of  all  the  elements  of 
the  case,  including  statutes  and  customs,  if  they  bear  upon 
it,  to  determine  the  simple  question  of  right  or  justice  pre- 
sented, which  from  its  nature  can  be  determined  only  by 
principles  of  natural  right  or  reason  ;  nor  is  there  a  con- 
ceivable case  in  which  he  will  be  justified  in  looking  upon 
the  question  in  any  other  hght. 

Whether  when  the  rio^ht  shall  be  determined  there  will 
be  a  corresponding  action  or  not,  is  another  question, 
and  one  on  which  statutes  and  precedents  may  exert  more 
or  less  influence  ;  but  the  two  questions  are  altogether 
distinct,  and  can  only  be  confused  at  the  expense  of  the 
integrity  of  the  intellect,  and  of  the  conscience  of  the 
judge. 

(4)  Hence,  as  the  rule  of  decision  in  determining  ac- 
tions is,  to  some  extent,  different  from  that  by  which  the 
judge  is  to  be  guided  in  determining  the  mere  question  of 
right,  there  must  ensue  in  some  cases  a  discrepancy  in 
results.  For  while  in  theory  actions  should  correspond 
precisely  with  rights,  in  practice  they  fail  to  do  so,  and 
thus  many  rights  are  without  the  corresponding  remedy. 
Hence,  in  practical  jurisprudence,  we  have  the  distinction, 
unknown  to  the  theory  of  right,  between  actionable  and 
non-actionable,  or,  as  they  are  otherwise  called,  between 
juridical  and  non-juridical  rights — a  distinction  in  theory 
extremely  important  to  observe,  and  with  reference  to 


88 

practice  no  less  so ;  for  there  is  no  fallacy  more  common, 
or  more  pernicious  in  its  consequences  than  to  infer, 
from  the  non-existence  of  an  action  or  remedy,  the  non- 
existence of  the  right. 

But  the  contrary  is  not  only  an  obvious  and  necessary 
deduction  from  the  very  notion  of  right,  but  is  very  clearly 
recognized  in  our  law.  Thus,  it  is  a  well-settled  principle 
that  a  right  barred  by  the  statute  of  limitations  continues 
to  exist,  though  the  remedy  be  forever  gone.  So,  also,  it 
has  been  repeatedly  held  with  reference  to  contracts  de- 
clared void  by  the  usury  and  banking  acts,  and  with  ref- 
erence to  conveyances  of  married  women  declared  void  by 
statute  on  account  of  defective  acknowledgments,  and  with 
reference  to  marriages  technically  void  for  want  of  com- 
pliance with  statutory  provisions  as  to  the  mode  of  sol- 
emnization,— that  rights  existed  under  and  by  virtue  of 
such  contracts,  conveyances,  and  marriages,  though  ex- 
pressly declared  to  be  void  by  statute  ;  and  accordingly, 
subsequent  statutes  declaring  them  valid  have  been  up- 
held, on  the  ground  that  the  validating  acts  did  not  create 
new  rights,  but  simply  provided  remedies  for  rights  al- 
ready existing.  Otherwise  such  laws  would  be  clearly 
unconstitutional ;  for  on  the  theory  that  there  were  no 
pre-existing  rights,  they  would  operate  to  transfer  the 
property  of  one  set  of  persons  to  another ;  which  is  forbid- 
den by  all  the  American  Constitutions,  State  and  Federal.^ 

The  existence  of  non-actionable  rights  is  also  very  fully 
recognized,  and  many  important  consequences  deduced 
from  it  in  the  Roman  and  in  modern  Civil  Law.^ 

The  obvious  distinction  between  actionable  and  no7i- 
actionable,  or  juridical  and  noii  juridical  rights,  is  not, 
however,  to  be  confounded  with  the  distinction  made  by 
Austin  and  his  school,  (heretofore  alluded  to,}  between 
legal  and  moral  rights.  The  latter  is  altogether  unten- 
able ;  for,  as  we  have  already  observed,  the  term  a  right 
implies,  as  part  of  its  essential  signification,  the  quality  of 
Tightness;  and  hence  there  can  no  more  be  a  right  that  is 
not  a  moral  right  than  there  can  be  a  four-sided  triangle 
or  a  square  circle. 

1  Sichel  vs.  Carillo,  42  Cal.  493  ;  Syracuse  Bank  vs.  Davis,  16  Barb.  103 ; 
Dentzel  vs.  Waldie,  30  Cal.  144  ;  Goslien  vs.  Stonington,  4  Conn.  309. 
^  Savigny  on  Obligations,  Browns  Abridgement^ 

^*"'*^tJFI7BRSITY; 


14  DAY  USE 

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